Every state has passed some form of legislation protecting seniors from financial exploitation in addition to any type of physical abuse or theft of assets. Senior Claimants and their attorneys need to be familiar with these statutes and use them to maximize recoveries from financial firms and brokers guilty of financial exploitation.
Florida is a good example of the kind of relief available to seniors. In Florida, any elderly Claimant able to prove by “clear and convincing evidence” that they have been harmed can maintain a claim for treble damages. The statute in Florida, where large numbers of seniors reside, also carries criminal penalties. Even in states where the statute does not provide for a private cause of action it can still be used to establish the standard of care to be followed. Including the cause of action in any case serves as a stark reminder to panel members that the state is intolerant toward elder abuse and that the panel should apply the same standard of measuring conduct.
The statute is explicit in setting out the evidentiary standard that must be met. It must be shown that the accused, “knowingly by deception or intimidation, obtained or used, or endeavored to obtain or use Claimant’s funds, assets or property…” In most cases of financial abuse, this standard is easily met.
There is no exact age standard applied by FINRA to determine who qualifies as a “senior” or as “elderly” in order to qualify under the various state statutes. SEC staff did state in one publication issued jointly by SEC staff, FINRA and the North American Securities Administrator’s Association that the term “senior investor” was used “to include investors who have retired or are nearing retirement.” FINRA tends to act in favor of including investors in their definition of elderly as opposed to excluding them.
There is growing sympathy for the elderly in the market place and increased animosity directed toward those who would abuse the trust of seniors. Elder victims and their representatives need to use every legislative and regulatory tool at their disposal to recover from those insensitive enough to victimize those who are least able to be aware of what is being done to them.