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Lawmakers put more teeth into consumer protection of Indiana seniors

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Indiana Lawyer Focus

Indiana seniors get some new consumer protections July 1. As a group, they also get a little younger.

The Senior Consumer Protection Act, Senate Enrolled Act 382, signed into law by Gov. Mike Pence, applies to Hoosiers age 60 or older, instead of starting at age 65, a difference that elder law attorneys say reflects the realities of an aging population that easily can fall prey to financial predators.

“With things like early onset Alzheimer’s and multiple sclerosis, we’re seeing a lot of people that age being taken advantage of,” said Keith P. Huffman, a Bluffton attorney with Dale Huffman & Babcock and chairman-elect of the Elder Law Section of the Indiana State Bar Association.

lanane Lanane

Senate Minority Leader Tim Lanane, D-Anderson, carried SEA 382 which had the backing of Republican Attorney General Greg Zoeller. The measure passed without any opposition votes in either house.

Lanane, an attorney, said he was motivated by tough cases he encountered in his private practice where it was apparent a senior citizen was being taken advantage of by family members, but there were no clear remedies under the existing law.

He described a particular case in which an older person was pressured to provide assets or lose care. “It wouldn’t rise to the level of outright theft,” he said. “It’s hard to say the senior didn’t willingly turn property over” to ensure that care was provided. In that case, the parties working with attorneys were able to come to an understanding, Lanane said.

Family members and caregivers will have the most to lose if they commit an act of financial exploitation by deception or intimidation under the new law. It gives attorneys the means and a true incentive to pursue cases where exploitation is suspected: the prospect of recovering treble damages, legal fees and civil penalties of up to $10,000. Those awards are authorized against persons the law describes as being in a position of trust or confidence of a senior citizen, which can include a fiduciary relationship.

Double damages and civil penalties up to $5,000 are allowable in cases of financial exploitation where a relationship of trust or confidence does not exist, according to the law.

“Hopefully it’s not something that has to happen often, but with more and more of the population aging, attorneys could be looking at situations like this as just another tool they can use to protect seniors under these circumstances,” Lanane said.

The statute authorizes the attorney general to bring an action to enjoin an alleged financial exploitation. It also allows the AG’s office to seek injunctions and ask a court to freeze assets of a person alleged to have committed financial exploitation, among other remedies.

Deputy attorney general and legislative director David Miller worked with Lanane and lobbied lawmakers to pass the legislation, patterned after a senior consumer protection law in Illinois. Miller said Indiana is in the forefront of states with such statutes, estimating only eight to 10 have enacted similar protections.

“Practically speaking, there may have been some legal remedies, but realistically, they were not functional,” Miller said. The law will fill a gap he said the AG’s office has seen in the past.

“We’ve received lots of complaints over the past several years in which we have unfortunately had to say, ‘You’re going to have to contact a private attorney,’” he said, estimating that number to be at least 100 over the last two to three years. Miller believes that the statute has sharp enough teeth that parties contacted by a private lawyer or the AG’s office and notified of potential penalties will comply or stop the offending actions.

Huffman, who also has served as president of the Indiana Chapter of the National Academy of Elder Law Attorneys, has been traveling the state briefing lawyers about the new law.

While most of the focus is on the provisions regarding financial exploitation of senior citizens by people in positions of trust, he said the Act will make a dent in recurring scams such as those perpetuated by unscrupulous home-repair contractors or door-to-door solicitors who deceive or intimidate older people in order to make a sale. “It’s broader than most people think when they look at it at first blush,” Huffman said of the statute, I.C. 24-4.6-6.

Along with recoverable double damages in such “door-to-door” cases, “The court can also assess fines against these people and attorney fees,” Huffman said. “Seniors are going to have some means of enforcing their rights, and hopefully this will stop people from taking advantage of seniors.”

But Huffman said he’s disappointed that the law didn’t go further and allow elder-law practitioners to go after people who victimize senior citizens with unscrupulous sales of insurance or securities.

huffman Huffman

“One of the things I see a lot of is someone selling a person who’s 85 years old an annuity that’s going to be paid out over 20 years,” Huffman said. “Some of the areas that have the greatest problems that seniors are exposed to are not covered by this Act.”

The law refers complaints regarding insurance and securities to the Indiana Department of Insurance and the Office of the Secretary of State, respectively. Those complaints may be acted on by the agencies or forwarded to the AG’s office.

Huffman said the state has increased training to ensure agents aren’t marketing improper products to seniors, but he believes more protections are needed. “We’ve seen a lot of abuse of that system, and in my opinion the state doesn’t do a good job of enforcing that.”

Lanane, too, believes there’s still work to be done to safeguard vulnerable seniors, and not only in terms of financial protections.

“The whole idea of adult protective services is something Indiana can take a look at,” he said.

“Families more and more are having to look at issues involving seniors not capable of taking care of themselves and making unwise choices, and what do you do?” Lanane said. “I think families are going to increasingly need assistance dealing with those issues.”•

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A look at the law

Senate Enrolled Act 382 – the Indiana Senior Consumer Protection Act – takes effect July 1. Here are some of the law’s key provisions:

PROTECTS seniors against financial exploitation by acts of deception or intimidation in order to obtain control over a senior’s property or assets.

PROVIDES as recoverable legal fees and civil penalties of $5,000 to $10,000, plus enhanced damages. Damages may be double the financial exploitation; treble damages may be awarded if the person committing the exploitation is a person in a position of trust or confidence of the senior victim.

LOWERS the age of someone defined as a “senior consumer” from 65 to 60 for purposes of the Act.

ALLOWS the intervention of the Office of the Indiana Attorney General in some cases. The AG’s office will be empowered to, among other remedies, seek injunctions and ask a court to freeze assets of people alleged to have committed financial exploitation of a senior.

EXEMPTS sales of insurance and securities from private civil claims. Directs those complaints, respectively, to the Indiana Department of Insurance and the Office of the Indiana Secretary of State, which may enforce regulations or refer complaints to the attorney general.
 

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  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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