Can a senior center incur civil liability for elder financial abuse if it permits its facility to be used by a presenter who then financially abuses attendees?
The answer may be yes, at least in California, according to San Francisco attorney Steven Riess, who contends that:
“By permitting an abuser to use its facilities for a presentation, a senior center is increasingly likely to be named as a co-defendant in an elder financial abuse lawsuit based upon direct, vicarious, and joint enterprise theories of liability.”
A memorandum containing his supporting legal analysis was recently sent to city attorneys in several Santa Clara County cities, shortly after which they instructed local centers to deny access to suspect commercial enterprises. The Riess memo was also cited by the Parks and Recreation Department of the City of Red Bluff in adopting new guidelines for the use of public centers by commercial enterprises.
The memo describes how senior centers have unknowingly facilitated abusers in their efforts to exploit elders. Trust mills and unscrupulous annuity agents, reverse-mortgage brokers, and others claim that their “free seminars” provide seniors with valuable educational information and materials relating to estate planning, Medi-Cal eligibility, and other topics.
According to Riess, under California's definition of elder financial abuse, an organization that facilitates the financial exploitation of an elder could arguably be liable for damages and attorneys' fees because the law protecting elders appears to apply to organizations that merely enable the exploitation. Although the theories are untested, senior centers remain likely targets of suits.
None of the Santa Clara centers are admitting that liability concerns are what motivated them to take action. And, other factors may have had a role. Shawna Reeves Nourzaie, a social worker with the Fair Lending Project for Seniors at the Council on Aging of Silicon Valley, who has alerted several centers to Riess' memo, also makes sure they know about a class action lawsuit filed by California Advocates for Nursing Home Reform and the Institute on Aging, which alleges that several companies used "free" living trust seminars to improperly learn about seniors' finances and then sent agents to the seniors' homes selling annuities. Shawna also comes armed with a 2003 alert from former Attorney General Bill Lockyer warning seniors against unscrupulous sales agents who pose as trust advisers or senior estate planners. The warning also exposed how the agents work with assisted living centers, churches, and other trusted entities to give themselves a cloak of legitimacy.
This is definitely one to watch!