THE NUTS AND BOLTS OF FINANCIAL ABUSE PROTECTION ORDERS Beth Goldstein, Esq. Supervising Attorney Office of Elder Fraud and Assistance

WHAT IS A FINANCIAL ABUSE PROTECTION (FAP) ORDER? AS 13.26.450 – Ex parte protective orders Grants any protection of the vulnerable adult’s funds necessary, except the power to make a will; Supersedes an existing power of attorney; Can prohibit an abuser from having any contact with the vulnerable adult; Can prohibit the abuser from taking any act with respect to the vulnerable adult’ funds or other property.

How Alaska’s FAP Came Into Being Senate Bill 86

SB 86 was presented to the Alaska Legislature during the January 2011 session The Bill had two components: 1. To create a temporary conservatorship procedure which allows the vulnerable victim to retain autonomy while receiving assistance before a full conservator would be appointed; 2. To create an ex parte relief from fraud procedure similar to Alaska’s existing domestic violence protection law which would allow vulnerable adults to obtain expedited relief from the courts.

SB 86 Amended Alaska Criminal Statutes Made a knowing violation of a financial protective order a crime; Amended the definition of protective orders in the criminal statutes to include financial protective orders; Made the fact that a defendant would knowingly direct criminal conduct at a person 65 and older an aggravating factor at sentencing.

SB 86 Made Fraud A Basis To Appoint A Conservator If 2 Criteria Are Met The vulnerable adult is unable to manage their property and affairs effectively due to the fraud; and The vulnerable adult has property that will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care, and welfare of the person or those entitled to be supported by the person and protection is necessary or desirable to obtain or provide funds.

Fraud As A Basis The legislature opined that adding fraud as a basis for a conservatorship seemed unusual because it neither requires nor is there any showing that the vulnerable adult is in any way disable. The legislature however recognized that there are increasingly more cases of usually older individuals who do not have a mental or physical deficiency, but they are being tricked, cheated, or someone is unduly influencing them to the point that they are unable to manage their funds and property, and they do not understand or believe that they are being victimized. The legislature also acknowledged that in scam cases such as the Jamaica relative bail fraud scam – both the police and the FBI were notified and neither could do anything to stop it and that scam technology was quickly out pacing law enforcement’s ability to protect people.

ALASKA’S FINANCIAL ABUSE PROTECTIVE ORDERS Immediately Stop Suspected Financial Abuse; Immediately obtain a 20-day ex parte protective order; No notice of the petition is required to the alleged perpetrator; No notice of the petition is required to the vulnerable adult IF can show that notice would cause immediate harm to them; Protective order may extend up to 6 months with notice and a hearing; Standard is probable cause standard – meaning only a showing that individual has been defrauded and there will be an immediate waste or dissipation of their assets.

HOW TO USE FINANCIAL ABUSE PROTECTIVE ORDERS TO STOP UNKNOWN SCAMMERS

WHO/WHAT ARE UNKNOWN SCAMMERS? Sweetheart Scams Publisher’s Clearinghouse Scams Nigerian Prince Scams IRS Scams Relative Needs Bail Scams Lottery/Prize Scams Fake Charity Scams

CIRCUMSTANCES WHERE FAP’S WORK ON UNKNOWN SCAMMERS The Vulnerable Adult is Continuing to Send Money to the Scammers Family, Friends, Professionals Have Told Adult They Are Involved In A Scam But Adult Continues To Send Money The Vulnerable Adult “Believes” and Will Not Be Dissuaded Even If They Say They Understand It Is A Scam Assets and/or Monthly Income Are At Risk – Adult Will Likely Become Destitute If Not Stopped Vulnerable Adult Will Not Stop Contacting Scammers Even When Family/Friends Have Taken Measures To Prevent Contact

Publisher’s Clearinghouse Case Suitcase Scam Romance Scams REAL CASE EXAMPLES Publisher’s Clearinghouse Case Suitcase Scam Romance Scams

HOW TO USE FINANCIAL ABUSE PROTECTIVE ORDERS TO STOP KNOWN PERPETRATORS

WHO ARE KNOWN PERPETRATORS? Anyone holding and misusing a Power of Attorney Adult Children/relatives having access to financial accounts or unduly influencing the vulnerable individual Care Givers having access to accounts or unduly influencing the vulnerable individual Neighbors or friends “taking care” of the person’s finances Anyone “taking frequent loans” from the vulnerable individual that are never paid back Guardians or Conservators Representative Payees

CIRCUMSTANCES WHERE FAP’S WORK ON KNOWN PERPETRATORS A Power of Attorney needs to be cancelled due to misuse and the vulnerable individual does not have the capacity to revoke it Bank accounts need to be frozen because the perpetrator has access to them because they are jointly on the account All financial dealings need to be stopped by the known perpetrator, e.g. selling assets The known perpetrator is taking the vulnerable individual into the bank and having them withdraw funds for them (no contact order in the order plus freezing the account) Freezing credit cards that a known perpetrator is using, authorized or not

HOW TO FILL OUT THE FAP PETITION

The Petition

Short Term Order

HOW TO GET THE VULNERABLE ADULT MONEY WHEN THE ACCOUNTS ARE FROZEN? File and Emergency Petition for a Conservator (preferable) Write the FAP Order to Allow a Certain Amount of Money to Be Released to a Specific Individual Who Will Temporarily Help the Adult with Finances

Conservatorship Petition

SPECIAL WORDING FOR ORDERS First - you need to specifically draft the 20-day order (or long term if need be) for what your want – Bank is ordered to freeze all accounts belonging solely or jointly to Mr. K. Second – if you want a conservator to be able to gain access to the account specifically state in the drafted order – “ a court appointed conservator shall have full access to all accounts to perform all transactions required for the financial needs of Mr. K.”

SERVING THE FAP UNKNOWN SCAMMERS NO SERVICE ON THE RESPONDENT OF THE PETITION OR THE ORDER IS REQUIRED BECAUSE THEY ARE UNKNOWN

SERVICE ON THE PROTECTED PERSON The Petition If letting the protected person know what you are doing i.e., freezing their bank account without them requesting it, you do not need to serve the protected person with the petition BEFORE the court issues the 20 day ex parte order (check the box on the form) If it is ok for the protected person to know before the order is issued, serve by email, fax or hand delivery (see form) The Order Unless your protected person is out of state have DPS Officer serve

Service on Known Perpetrator Never serve the known perpetrator with the petition ahead of time – these are ex parte for a reason Always have DPS serve them – after the order is issued they will serve them with both the petition and the order

Service is Required to Make the Order Happen You must serve any institution such as a bank, credit card company, DMV, etc. with the ORDER so that they know what to do. Example – the order tells all financial institutions holding accounts that jointly or individually are owned by Mr. K – you must serve the order on the bank(s) where you believe Mr. K has an account(s) or the bank cannot know to freeze it. Example – the order tells the credit card company that no charges are permitted on any account owned jointly or solely by Mr. K. while the order in in force – you must serve the credit card company with the order or they will not know it is in existence. Example – the order cancels perpetrators POA, you must serve all banks, and any other places perp may use the POA with the order or the perp can waltz in with their POA and conduct a transaction (they may be held accountable by the court but that doesn’t save the $ or necessarily get it back).

HOW DO YOU SERVE? ALL BANKS AND FINANCIAL INSTITUTIONS HAVE THEIR OWN WAY THE PREFER TO BE SERVED WITH COURT ORDERS, YOU MUST EITHER FIND OUT ONLINE OR CONTACT THE FINANCIAL INSTITUTION DIRECTLY SO THEY CAN DIRECT YOU ON HOW TO PREFECT SERVICE ON THEM. Be sure to keep some record of how you served them in case they fail to follow the order

I GOT A 20 DAY ORDER AND SERVED IT WHAT NEXT? If you want a long-term order (up to 6 months) the Respondent gets a hearing – so you must prepare to put on evidence to show that the vulnerable individual was financially exploited, by clear and convincing evidence. Call witness; provide bank documents; provide other financial documents. If you obtain the long-term order you then also must serve that order on financial institutions, etc. like you did the short term order.

WHEN WOULD YOU NOT SEEK A LONG-TERM ORDER? If you have been able to get a conservatorship or guardianship with conservator authority in place right away and that person is able to secure all of the funds you were seeking to protect, you likely will not need a long-term order. Exceptions You have a no contact order in the 20 day and you want that to remain in place for 6 months; The conservator will not be able to secure the funds before the short term FAP Order runs out because things are too complicated

CONTACT INFORMATION BETH GOLDSTEIN SUPERVISING ATTORNEY ALASKA OFFICE OF ELDER FRAUD AND ASSISTANCE BETH.GOLDSTEIN@ALASKA.GOV 907-334-5932