California’s mandatory reporting statute requires all officers and employees of banks and financial institutions to report known or suspected cases of financial abuse involving an elder or dependent adult. See, Calf. Welf. & Inst. § 15630.1. (Per Calf. Welf. & Inst. §§ 15610.27 and 15610.23, an “elder” is any person who is age 65 or older and a “dependent adult” is any person between the ages of 18 and 64 who has physical or mental limitations that restrict their ability to carry out normal activities or protect their rights). The mandatory reporting statute requires reports to be made immediately, or as soon as practicably possible, to the local law enforcement agency or adult protective services agency when the officers or employees observe, know of, or reasonably suspect an incident of financial abuse. Id. Failure to report such financial abuse is subject to a civil penalty of up to $1,000 (or up to $5,000 if the failure to report is willful). Id. Any civil penalties imposed are required to be paid by the financial institution employing the mandated reporter.
Despite being available by statute, civil penalties for failing to report financial abuse can only be recovered in a civil action brought by the Attorney General, district attorney, or county counsel against a bank or financial institution. Calf. Welf. & Inst. § 15630.1(g)(1). No other party can seek to recover civil penalties under this statute. Id. In Das v. Bank of America, NA, 186 Cal. App. 4th 727 (2010), the California Court of Appeals held that the daughter of an older adult account holder was unable to recover civil damages for a bank’s failure to report because the mandatory reporting statute expressly barred civil actions by private individuals and “did not enlarge the legal bases for a private civil action predicated on a bank’s failure to report suspected financial abuse.” As a result, the Court in Das affirmed the important role of the Attorney General and prosecutors in cases involving the financial abuse of older adults in California.
Banks and financial institutions in California can also play an important role in thwarting financial abuse involving powers-of-attorney. In 2017, the California legislature amended the mandatory reporting statute to include a provision allowing employees of banks and financial institutions to refuse to honor a power of attorney if there is suspected financial abuse of an elder or dependent adult. According to Calf. Welf. & Inst. § 15630.1(g)(1), a mandated reporter is authorized to not honor a power of attorney if the reporter makes a report to an adult protective services agency or local law enforcement agency “of any state that the principal may be subject to financial abuse.” This provision allows for employees of banks and financial institutions to refuse to honor the directives of errant attorneys-in-fact if financial abuse is suspected. However, the power of attorney is enforceable with respect to any other designated attorney-in-fact in which a report has not been made. Calf. Welf. & Inst. § 15630.1(g)(2). As a result, employees of banks and financial institutions must continue to honor the requests of these individuals.
California’s reporting statute is unique because it not only requires banks and financial institutions to report suspected cases of financial abuse, the law also imposes civil penalties on banks and financial institutions if they fail to report suspected cases of financial abuse involving older adults. However, the reporting statute expressly limits actions for civil penalties by only allowing such actions to be recovered by the Attorney General, district attorney, or county counsel. The statute also allows for banks and financial institutions to refuse to honor a power of attorney if the attorney-in-fact is suspected of financial abuse involving an elder or dependent adult AND a report is made to an adult protective services agency or local law enforcement agency. As cases of financial abuse continue to increase throughout the United States, California’s mandatory reporting statute provides a good model for other states to consider implementing because it helps thwart the growing problem of financial abuse and allows banks and financial institutions to become more involved in the prevention of financial abuse involving older adults.
Works Cited
Association, C. B. (2019, June 18). Retrieved from https://www.calbankers.com/press-release/wba-works-san-diego-district-attorneys-office-draw-attention-elder-financial-abuse
California Bankers Association. (2019, June 18). Retrieved from https://www.calbankers.com/press-release/wba-works-san-diego-district-attorneys-office-draw-attention-elder-financial-abuse
California Bankers Association. (2019, June 18). Retrieved from https://www.calbankers.com/press-release/wba-works-san-diego-district-attorneys-office-draw-attention-elder-financial-abuse
Consumer Financial Protection Bureau. (2016, August 23). Retrieved from https://files.consumerfinance.gov/f/documents/bcfp_fighting-elder-financial-exploitation_community-networks_report.pdf
McGuire, N. (2019). Whose Dime Is It Anyway? A Comprehensive Look at Federal and State Government Landscapes for Senior Financial Exploitation Laws Concerning Financial Exploitation. 26 Elder Law Journal 431, 432-460.