By Michael W. Davis, Esq.
Maryland’s Statute Against Financial Exploitation (the SAFE Act) provides for a civil cause of action with treble damages. Here is a summary. Editor’s Note: The author was the chair of the Vulnerable Adult Exploitation Task Force, which played a significant role in the development and passage of Maryland’s SAFE Act in 2021.
The Maryland SAFE Act is found in the Annotated Code of Maryland, Estates and Trusts Article, §§13-601, et. seq. (the “Act”).
Statement of Legislative Purpose
Section 13-602 sets out the purposes of the Act that can be used as needed when there is a need for legislative interpretation. These provisions are:
- “Establish a separate and distinct civil cause of action by a victim, or the representative of the victim, of financial exploitation;
- Provide a path to redress financial exploitation through the recovery of property and assets taken while discouraging protracted litigation;
- Provide access to justice for victims and their families who are otherwise unable or unwilling to retain competent legal assistance due to cost; and
- Strongly deter individuals seeking to take advantage of susceptible adults or older adults.”
Finally, and very importantly, Section 13-608(A) provides that “[t]his subtitle shall be construed and applied liberally to promote its purpose of deterring and remedying the financial exploitation of susceptible adults or older adults.”
Cause of Action
Section 13-604 of the Act provides that a “susceptible adult or older adult who is or who has been subjected to financial exploitation…may bring a cause of action against a person who has committed financial exploitation against the susceptible adult or older adult to recover damages and obtain other appropriate relief…”. This is a deceptively simple statement that will require significant inquiry to understand the full scope of the Act.
Note that under Section 13-605(B), this cause of action is “In addition to and cumulative with any other criminal or administrative claims, causes of action at law or in equity, or remedies otherwise available to susceptible adult or older person.” Further, any cause of action shall survive the death of the victim.
“Older and Susceptible Adult”
- Older Adult: Section 13-601(I) defines an older adult as “an individual who is at least 68 years of age.”
- Susceptible Adult: A “susceptible adult,” according to §13-601(K) “means [any] adult who is unable to perform, without prompting or assistance, one or more activities of daily living, is unable to protect the adult’s rights, or has diminished executive functioning, due to advanced age; mental, emotional, sensory, or physical disability; impaired mobility; habitual drunkenness; addiction to drugs; or, hospitalization.” (Emphasis added.)
- Activities of Daily Living: The term “activities of daily living” includes both “basic activities of daily living” and “instrumental activities of daily living.” Sections 13-601(B), 11 Section 13-601(C), 12 Section 13-601(F).
- Basic Activities of Daily Living: In accordance with §13- 601(C), these are the routine activities that people engage in every day. Note that it only requires a finding that a person requires assistance with only one of the following activities: eating, bathing, dressing, toileting, mobility, and continence.
- Instrumental Activities of Daily Living: These are activities that involve “skills and abilities to perform day-to-day tasks associated with an independent lifestyle.” §13-601(F). Again, if an adult “is unable to perform, without prompting or assistance, one or more” of the following, then that adult would be deemed “susceptible”: using the telephone, doing laundry and dressing, shopping and running errands, preparing meals, managing medications, housekeeping, and managing finances.
Typically, a person would be considered disabled if that person requires assistance with two more activities of daily living. Since the goal of this legislation is to protect persons who are susceptible due to undue influence or other type of manipulation, the burden of proof was lowered so that a person will be considered a susceptible adult if that person requires assistance with one or more of the above activities of daily living caused by a physical, psychological or emotional issue.
Once it is determined that the adult is qualified as a susceptible adult or an adult who is 68 years or older, the question is whether a perpetrator committed actionable financial exploitation under the Act against that person. Section 13-601(E) addresses three different types of financial exploitation:
- Exploitation by a person who is in a “position of trust and confidence;”
- Exploitation by “deception,” false pretenses, false promises, larceny, embezzlement, “intimidation,” etc.; and,
- Exploitation by a perpetrator who knows or who should know that an adult is a susceptible adult.
Note that ‘financial exploitation” includes “misappropriation, misuse, or transfer of assets belonging to a susceptible adult or older person from a personal or joint account .” Section 13-601(E)(2)(III) (Emphasis added.) This definition should make it more difficult for a perpetrator to defend against such exploitation when that perpetrator plunders a joint account that was set up for convenience purposes only.
Financial exploitation can also include the “intentional failure to effectively use an older person’s or susceptible adult’s income and assets for the necessities required for an older adult or susceptible person’s support and maintenance. Section 13-601(E)(2)(IV). In other words, the beneficiary who attempts to preserve an inheritance by not expending funds to take care of the older person or susceptible adult may run afoul of this legislation.
However, “financial exploitation” does not include transfers of property from a susceptible person or older person for the purpose of “implementing an estate plan intended to reduce taxes or maximize eligibility for public benefits in order preserve assets for an identified or identifiable person.” Section 13-601(E)(3). Legitimate tax planning and Medicaid planning strategies fall outside the scope of this Act.
Section 13-605 sets out a broad list of persons, including government agencies, who can act on behalf of a susceptible person or older adult in bringing an action under the Act. These include, but are not limited to: attorneys-in-fact, guardians, trustees, health care agents, spouses, parents, descendants, presumptive heirs, a named beneficiary to receive any property, personal representatives, and governmental agencies. Since an action under the Act survives the death of the susceptible person or older adult (Section 13-605(B)(2)), representatives of the victim’s estate can bring an action under the Act after the death of the victim.
One of the key elements of this Act is its provision for damages. In addition to being able to recover the full value of the property that was transferred from a susceptible adult or older adult, a victim may also be awarded attorneys’ fees and treble damages, subject to the discretion of the court. Section 13-606(B). This is an important provision because it should allow victims to obtain competent legal counsel since the payment of attorneys’ fees is better protected. Also, from the perspective of settling claims, a perpetrator may be more willing to settle if the prospect of paying more than the value of what was transferred is a factor. (This phenomenon has been one of the outcomes of using one of the statutory financial powers of attorney under the General and Limited Power of Attorney Act, Estates & Trusts Article, § 17-201, et seq.) In addition to monetary damages, a court retains the ability to provide injunctive relief, rescission, restitution, accounting, declaratory relief, and other equitable relief. Section 13-606(C).
Note that if a court determines that a plaintiff brought an action in bad faith or is of a frivolous nature, the court may order the plaintiff to pay the defendant’s attorneys’ fee and court costs. Section 13-606(E). This is to address the concern that family members could use this Act as a “weapon” with other family members in dealing with the financial needs of an older person or a susceptible adult.
Statutes of Limitations
The general rule is that any action under the Act should be “commenced within 5 years after the older person or susceptible adult or… [ that person’s] representative discovers or, through the exercise of reasonable diligence, should have discovered the facts constituting financial exploitation.” 21 Section 13-607(A).
If a criminal action is brought against a perpetrator, the time for commencing a civil action shall be suspended during the pendency of the criminal action. Then, upon the conclusion of the criminal action, an action must be brought within the later of (i) the remainder of the original. 5-year period and (ii) 1 year. Section 13-607(b).
These longer periods for limitations were thought necessary in light of the nature of the wrongs being committed. Often, within a dysfunctional family, the ability to bring an action under the Act can be inhibited by the actions of the perpetrator. The method for imposing a period of limitations for a civil action as set forth in the Act was developed to address this concern.
Another MSBA Resource You May Find Useful: Legal Mastery Series: Elder Law
Michael W. Davis is with Davis Agnor Rapaport Skalny, LLC in Columbia, Md., where he works with the Estate Planning practice group to assist clients as they seek to address both their estate planning and their disability needs in an innovative and education-focused manner.