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Financial Exploitatiin Nursing Homes

Posted by attorney Kenneth LaBore

A.Financial Exploitation

Financial Exploitation occurs:

1) When someone with an obligation to care for a vulnerable adult misuses the financial resources of the vulnerable adult.

2) When someone who doesn’t have legal authority acquires possession or control of the vulnerable adult’s property through undue influence, harassment, or duress.

3) When someone without legal authority forces, compels, coerces or entices the vulnerable adult against their will to perform services for profit of someone else.

When a person helps a vulnerable adult with their finances or property they owe the vulnerable adult a Fiduciary Duty. That the person is expected to act in the best interest of the vulnerable adult. The most common situations that result in a fiduciary duty are:Power of Attorney,Guardian or Conservator,TrusteesandJoint Account holders.

There is a new tool for victims of financial exploitation and those attorney representing them contained in the Minnesota Vulnerable Adults Act (VAA), Minnesota Statute § 626.5572, Subd. 9, which states:

"Financial exploitation" means:

(a) In breach of a fiduciary obligation recognized elsewhere in law, including pertinent regulations, contractual obligations, documented consent by a competent person, or the obligations of a responsible party under section 144.6501, a person:

(1) engages in unauthorized expenditure of funds entrusted to the actor by the vulnerable adult which results or is likely to result in detriment to the vulnerable adult; or

(2) fails to use the financial resources of the vulnerable adult to provide food, clothing, shelter, health care, therapeutic conduct or supervision for the vulnerable adult, and the failure results or is likely to result in detriment to the vulnerable adult.

(b) In the absence of legal authority a person:

(1) willfully uses, withholds, or disposes of funds or property of a vulnerable adult;

(2) obtains for the actor or another the performance of services by a third person for the wrongful profit or advantage of the actor or another to the detriment of the vulnerable adult;

(3) acquires possession or control of, or an interest in, funds or property of a vulnerable adult through the use of undue influence, harassment, duress, deception, or fraud; or

(4) forces, compels, coerces, or entices a vulnerable adult against the vulnerable adult's will to perform services for the profit or advantage of another.

(c) Nothing in this definition requires a facility or caregiver to provide financial management or supervise financial management for a vulnerable adult except as otherwise required by law.

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