An estimated 10,000 Americans turn 65 every day, and this trend is expected to continue for more than a decade. On top of that, Americans are living longer. The average American man or woman reaching age 65 today can expect to live until age 84 or 86, respectively. Legislators and regulators are well aware of these trends, and of the fact that seniors are more susceptible to financial abuse than others. All 50 states have elder abuse laws that prohibit financial exploitation of vulnerable adults and mandate reporting of such exploitation.
Ohio, like many states, is increasing its efforts to protect seniors. Most notably for our clients, Ohio added categories of individuals and entities to the list of those who, “having reasonable cause to believe that an adult is being abused, neglected, or exploited, or is in a condition which is the result of abuse, neglect, or exploitation,” are required to immediately report such belief to the County Department of Job and Family Services. Pursuant to Ohio Revised Code (“O.R.C.”) § 5101.63(A), effective September 29, 2018, the list will include:
- Investment advisers, as defined under O.R.C. § 1707.01;
- Employees of banks, savings banks, savings and loan associations, or credit unions;
- Financial planners accredited by nationally recognized accreditation agencies;
- Certified public accountants and public accountants;
- Real estate brokers and salespersons; and
Attorneys, physicians, employees of hospitals, home healthcare agencies, and nursing homes, clergy, social workers, peace officers, and others are currently required to report such beliefs. Senate Bill 158, which was referred to the Senate Judiciary Committee in June 2017, seeks to add dealers, salespersons, and investment adviser representatives licensed under Chapter 1707 of the O.R.C. to the list.
An “adult” is defined under O.R.C. § 5101.60(B) as “any person sixty years of age or older within this state who is handicapped by the infirmities of aging or who has a physical or mental impairment which prevents the person from providing for the person’s own care or protection, and who resides in an independent living arrangement.”
In addition, as of September 29, 2018, “exploitation” will be defined under O.R.C. § 5101.60(J) as “the unlawful or improper act of a person using, in one or more transactions, an adult or an adult’s resources for monetary or personal benefit, profit, or gain when the person obtained or exerted control over the adult or the adults resources,” without consent, beyond the scope of consent, or by deception, threat, or intimidation. This is a very expansive definition of “exploitation” that is designed to cover a wide range of elder abuse, including theft and fraud. Notably, this expansive definition will apply to any “person” who engages in “exploitation,” unlike the current definition of “exploitation,” which applies only to a “caretaker” (i.e., the person assuming the responsibility for the care of an adult).
Under O.R.C. § 5101.61(C), the requisite reports can be made orally or in writing, except an oral report must be followed by a written report if a written report is requested by the Department of Job and Family Services. (O.R.C. § 5101.61 will be renumbered O.R.C. § 5101.63, effective September 29, 2018.) The written reports must include: (1) the name, address, and approximate age of the adult who is the subject of the report; (2) the name and address of the individual responsible for the adult’s care, if any individual is, and if the individual is known; (3) the nature and extent of the alleged abuse, neglect, or exploitation; (4) the basis of the reporter’s belief. Under O.R.C. § 5101.61(F), both written and oral reports are confidential and are not public records as defined in O.R.C. § 149.43. Under O.R.C. § 5101.61(F), employers are prohibited from taking detrimental or retaliatory action against an employee for filing a report.
Those individuals and entities under the ambit of the amendments should be prepared to train and educate their employees on the requirements of the financial exploitation rule, and to implement written procedures reasonably designed to comply with the requirements. We expect aggressive attorneys to attempt to use any alleged failure to comply with the requirements as a basis to support claims on behalf of alleged victims of elder abuse.