Protecting Elderly Individuals

Kerri Griffin (2011 J.D./M.S. PFP candidate, Texas Tech University) recently published her comment entitled Safeguarding Against Golden Opportunities, 2 Est. Plan. & Community Prop. L.J. 441 (2010).  An excerpt from the introduction is below: 

Problems such as this one are occurring with increasing frequency as the baby boomer population ages and unscrupulous individuals try to profit from their weaknesses. The consumer credit industry is mostly unregulated, “provid[ing] ample opportunity for predatory solicitors to take advantage of the elderly, one of society’s most vulnerable groups.” Although some scams that target the elderly are illegal, most of them are legal, and are simply “poor financial deals.” Consequently, “there is often little one can do to stop the harm except educate the elderly person and, if necessary, remove some of his or her freedoms.” This article seeks to analyze the different approaches available to attorneys in this situation.

Part II introduces some of the different investment schemes that deceive elderly individuals: reverse mortgages, annuities, spin-life insurance policies, life settlements, and Ponzi schemes. Part III differentiates between elderly and young investors, showing why the elderly are specifically targeted by predatory schemers. Part IV presents a discussion of what attorneys are forbidden to do in situations like this by the Model Rules of Professional Conduct, which have been adopted in some form by every state. Under the rules, attorneys cannot disclose confidential information to the client’s beneficiaries, give the client uneducated financial investment advice, or appoint a guardian for the client. Part V discusses possible approaches for attorneys that would not breach the Model Rules.  These include getting the client’s permission to speak with their family, giving the client candid advice as to the attorney’s apprehension about the investment, trying to get more protection for the elderly, getting in contact with the person taking the client’s money, getting the client’s permission to get in touch with a Certified Financial Planner, and setting up a trust for the client. Part VI addresses possible solutions to the problems involved with investments by the elderly. These solutions include educating the elderly, regulating these industries more closely with regard to elderly investors, and giving attorneys more power to properly protect their clients who fit this profile.