Financial exploitation is a growing problem, especially among vulnerable adults and older adults. In Maryland, the Statute Against Financial Exploitation (SAFE Act) provides a powerful civil cause of action for victims of financial exploitation and their families to recover damages.
To aid other attorneys who are faced with clients who may have been exploited, Adam Spence presented a program on litigating SAFE Act claims.
Real World Stories and Issues in Litigation of Financial Exploitation Cases
In his presentation, Adam discussed real-world stories and issues that arise in the litigation of financial exploitation cases and discussed the complexities of bringing such claims. Having worked on the TASK Force which drafted and lobbied for the SAFE Act, Adam was able to provide insight into how the SAFE Act will provide considerable advantages to litigants seeking damages for financial exploitation.
Need for Filing Both a Caveat Petition in the Orphan’s Court and a SAFE Act Claim in the Circuit Court
Adam next discussed the unique jurisdictional and procedural issues facing victims of financial exploitation. Adam discussed how during the litigation of a financial exploitation case, it is important to file a caveat petition in the Orphan’s Court. A caveat petition would seek to set aside an unduly influenced Will that would otherwise benefit the perpetrator. Unduly influenced Wills are something that is common with financial exploitation cases. By taking a double-barrel approach, Adam explained how the victim’s family is able to ensure that any recovery of damages for financial exploitation does not go back into the hands of the perpetrator as the main beneficiary of the Estate.
Proof Required under the SAFE Act
Adam next discussed the different types of SAFE Act claims, including claims arising from a perpetrator’s taking of assets while in “confidential relationship” to the victim. Adam discussed various methods of proof, including establishing the perpetrator’s role as the victim’s power of attorney or as the manager of the victim’s affairs.
Using Medical Records and Financial Records to Establish Proof
Adam continued by discussing how physical and cognitive conditions should be presented to further bolster claims of a “confidential relationship.” This is required as an one type of regularly anticipated SAFE Act claim. Medical records and financial records can be very helpful in establishing proof of such confidential relationship. For example, medical records can be used to show that the victim was mentally or physically dependent on the perpetrator at the time of the financial transaction.
Witness and Expert Testimony
Adam next discussed the witness and expert testimony as helpful avenues to establish proof of financial exploitation. For example, witnesses can testify about the perpetrator’s relationship with the victim and about the circumstances of the financial transaction. Medical experts, such as physicians, psychiatrists or psychologists can testify to cognitive or physical decline, both aspects of establishing a confidential relationship. Financial Experts, such as forensic accountants or financial planners, can testify about the damages suffered by the victim.
Pertinent Case Law
Adam also discussed pertinent case law that is useful when pursuing claims under the SAFE Act since the cases can often assist the attorney in establishing different elements of SAFE Act claims.
Using Quickbooks to Create and Analyze Damages
Adam then explained how QuickBooks can be used to create and analyze damages in financial exploitation cases. For example, you can use QuickBooks to create a financial statement that shows the victim’s assets before and after the financial exploitation occurred. You can also use QuickBooks to create a damages report that shows the amount of money that the victim lost as a result of the financial exploitation.
Creating Powerful Demonstrative Exhibits
Adam shared how you can use QuickBooks to create powerful demonstrative exhibits for your financial exploitation case. For example, you can create a chart that shows how the victim’s assets decreased over time. You can also create a timeline that shows the financial transactions that occurred leading up to the financial exploitation. Adam closed by showing a powerful exhibit overlaying medical diagnoses on top of financial transactions to reveal the extent to which the victim’s medical and cognitive condition decline tracked against increased theft by the perpetrator.
Conclusion
Financial exploitation is a serious problem, but there are things that victims and their families can do to protect themselves. If you believe that you or a loved one has been financially exploited, you should contact an attorney to discuss your legal options.
Materials
Mr. Spence’s program materials can be downloaded here. The program can be watched online through the Maryland State Bar Association’s Continuing Education Catalog.