Maryland has a new and powerful remedy for victims of financial abuse and their families: the Statute Against Financial Exploitation (the “SAFE Act”). You can find the SAFE Act here.
The SAFE Act was the result of the Maryland State Bar Association’s Task Force on Financial Exploitation to address the growing problem of financial abuse. Mr. Spence played an important role on that Task Force in assisting with the drafting of and lobbying for passage of the SAFE Act.
Resulting from hundreds of hours of work by attorneys, the SAFE Act deters and punishes those involved in financial exploitation of the elderly and vulnerable.
After its passage in 2021, Mr. Spence spent additional time developing materials to teach other attorneys about this powerful new statute that can be used in the fight against financial exploitation. Mr. Spence’s program materials are available here.
What is the SAFE Act?
The Maryland General Assembly unanimously passed SAFE Act (Statute Against Financial Exploitation) during the 2021 session. The Law went into effect on October 1, 2021.
The SAFE Act creates a new civil cause of action for susceptible and older adults (and their families) to recover lost funds and assets due to financial exploitation.
For the first time, the SAFE Act provides victims with recovery of legal fees and up to triple damages for financial exploitation.
What is the purpose of the SAFE Act?
Prior to the passage of the SAFE Act, there were limited remedies available to victims of financial exploitation.
While Adult Protective Services and States Attorneys could act on behalf of the exploited, such cases were rarely undertaken because of the lack of resources and the higher burden of proving criminal intent.
In turn, few victims or their families were able to afford the high cost of private attorneys to bring actions against perpetrators of financial exploitation.
The SAFE Act addressed this issue by both increasing allowable damages and also requiring the perpetrator to pay legal fees.
Who is protected under the SAFE Act?
The SAFE Act is aimed at protecting both “older adults” (defined as any person who is 68 years of age or older) and “susceptible adults” (defined as an adult who is unable to execute daily life without assistance due to conditions such as age, disability, illness, or substance abuse).
What is considered “financial exploitation” under the SAFE Act?
“Financial exploitation” is defined as one of the following:
- Anyone who obtains assets from a victim who is incompetent and unable to comprehend the transaction;
- Anyone who uses false promises, pretenses, or criminal acts to obtain money from the victim; OR
- Anyone in a position of trust and confidence who abuses that trust to obtain the assets of the victim (a breach of fiduciary duty) and the transaction is not fair nor reasonable.
What rights do victims and their families have under the SAFE Act?
The SAFE Act allows the Maryland Attorney General’s office to prosecute a claim against a perpetrator, although the resources of this agency are obviously limited.
The SAFE Act addresses this problem by increasing damages and providing for attorney’s fees, which makes hiring a private attorney easier.
Who can sue?
Under the SAFE Act, the victim may file suit. The SAFE Act also allows guardians, trustees, family members, and heirs to file suit on the victim’s behalf.
The victim does not have to be alive for someone to sue under the Act. An heir or the executor of the victim’s Estate can file suit if the victim has passed away. Heirs and Estates often file suits to recover monies like ones under the SAFE Act to recover monies wrongfully taken..
When Do I have to Bring an Action under the SAFE Act?
The time limit — the statute of limitations to bring a claim — is five years from the date the exploitation occurred, or five years from the date the potential plaintiff discovered or should have reasonably discovered the exploitation.
Notably, the SAFE Act expands by two years Maryland’s ordinary statute of limitations which is only three years. This five year period provides for a broader window for the exploited adult or their representative to seek recovery of lost assets.
What is the possible recovery?
If successful, the Court may award the recovery of lost assets to the exploited adult or their representative, as well as remedies such as injunction or recission of a contract.
The Court may also award a maximum of three times the amount of compensatory damages. Such “treble” damages contrast with the typical civil suit where only what has been lost may be awarded.
In addition, legal fees may also be recovered.
The attorneys at Spence | Brierley are experienced in bringing lawsuits to remedy financial exploitation of our elders. If you believe that you or a family member has been exploited by someone — even a sibling, — contact our offices to speak with Adam Spence or Liz Johnson as soon as possible.
A sample lawsuit raising SAFE Act claims as well as other claims often used in financial exploitation cases is available here. Don’t be surprised if the sample fact pattern may look like the facts in your own matter. Financial exploitation cases often have very similar fact patterns.
This article is not intended to be legal advice or serve as the basis for any business or legal decision. Each legal matter is different and requires a particularized review of the law as applied to your specific facts. The attorneys at Spence | Brierley can review your case and determine if it is worthwhile for you to proceed.