Responding to the financial abuse of older people - Loddon ...

Reporting requirements are in two categories: mandated or non-mandated.
A mandated reporter is any person who has assumed full or intermittent care
or custody of an elder. Financial institutions are unlikely to be mandated reporters
under this definition. Failure of a mandated reporter to report financial abuse is a
misdemeanour. This positive obligation to report is onerous but does eliminate any
privacy concerns as it is required by law.
All other persons who know, or reasonably suspect elder abuse was or is in progress,
including financial institutions and their employees, are non-mandated reporters.
There is no requirement for non-mandated reporters to report elder abuse but if a
report is made, it must be made to designated agencies. A non-mandated reporter
does not incur civil or criminal liability for reporting unless the report was false and
the non-mandated reporter knew it to be false. Implicitly, the non-mandated reporter
should be able to demonstrate that ‘reasonable suspicion’ exists.
Whilst the Californian model gives clear legislative protection for disclosure (and
for some, a requirement to disclose), the protection from breaching privacy laws still
require some conditions to be met, such as a demonstrable ‘reasonable suspicion’.
It is, however, often an exercise of judgement as to whether something ought to be
reported. For example, an apparently improvident transaction may have been freely
agreed to by the elder (which would not be elder abuse) or it may have been a misuse
of a trust relationship (which is elder abuse).
(b) Saskatchewan, Canada
The Royal Canadian Mounted Police in Saskatchewan, Canada, took a different
approach and developed a form letter that seniors can sign to authorise the relevant
financial institution to contact them before processing a transaction. The main
features of the form letter are:
(i)
(ii)
permission given to the financial institution and its employees to monitor
accounts and other financial instruments with that financial institution;
permission given to the financial institution and its employees to raise concerns
with the customer about the nature of any transaction, with the option of
emphasis on particular types of risks, such as elder or financial abuse;
(iii) permission given to the financial institution and its employees to advise
the police at the financial institution’s discretion; and
(iv) reservation of the customer’s right of final decision on all aspects
of their financial affairs.
The Saskatchewan model has several advantages. First, it addresses any potential
privacy concerns of a financial institution directly by obtaining the customer’s
consent, presumably prior to any disclosure of information. There remains some
privacy risk if the report to the police also contains another person’s personal
information (such as a suspect’s name and other details) and that person has not
given consent for the disclosure.
23