The Senior Safe Act: What financial advisors need to know

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When a senior citizen is getting scammed, their financial advisor is sometimes the first person to know. But if that advisor reports it to the authorities, they risk violating their firm's privacy rules or even breaking the law.

The Senior Safe Act aims to resolve that conflict. The 2018 law gives legal immunity to financial professionals — including investment advisors, broker-dealers and their employees — if they report that a client aged 65 or older is being defrauded.

"There are also other federal laws and rules that impact this area," said Lori Schock, the director of the Securities and Exchange Commission's Office of Investor Education and Advocacy. "But the Senior Safe Act provides explicit immunity from liability in any civil or administrative proceeding for reporting financial exploitation."

In recent years, that kind of exploitation has skyrocketed. In 2022, 88,262 victims over age 60 reported being defrauded, according to the FBI's Internet Crime Complaint Center. Their losses totaled $3.1 billion — an 84% increase over the previous year. The average loss per victim was $35,101.

"It's a crisis," said Kathy Stokes, director of fraud prevention programs at the retiree advocacy group AARP. "And there's so much more fraud that's just not getting reported."

The Senior Safe Act helps wealth managers blow the whistle on these crimes. But it can only work if they understand when and how it protects them. Here's what financial advisors need to know:

Immunity from what?

In addition to the privacy rules of individual firms and regulatory agencies, several U.S. laws restrict the disclosure of clients' personal information. These include the Gramm-Leach-Bliley Act, a federal law that requires firms to protect customers' data, and SEC Regulation S-P, which addresses the same subject. 

Exceptions within those laws exist, but the Senior Safety Act goes further: It explicitly protects whistleblowers from lawsuits and "administrative" proceedings stemming from those rules.

"What the Senior Safe Act essentially does is it incentivizes reporting of financial exploitation and gives certain individuals in financial institutions immunity," Schock said.

When are you protected?

The law only provides that immunity if two conditions are met: First, the person reporting the suspected scam must have received training on how to spot cases of elder fraud. On June 15, three agencies — the North American Securities Administrators Association (NASAA), the Securities and Exchange Commission (SEC) and Financial Industry Regulatory Authority (FINRA) — provided one such training in a webinar attended by almost 900 people.

"The carrot is the immunity, and the burden to get the carrot is employees have to receive training on how to identify and report financial exploitation of seniors," Rich Szuch, the enforcement chief of the New Jersey Bureau of Securities, said at the webinar. "I don't think the burden is too high, and I think it's fair because, after all, we have to protect people's privacy."

Second, the person must make the report "in good faith" and "with reasonable care." In other words, the whistleblower has to honestly suspect wrongdoing — and that's enough.

"That means you have a reasonable belief of financial exploitation," Schock said. "And that's adequate for reporting. Proof is not required."

Who should you report to?

For the immunity to apply, employees must report the suspected fraud to what the Senior Safe Act calls a "covered agency." This is a big umbrella — it includes the SEC, state regulators, adult protective services agencies, law enforcement, other federal agencies and FINRA.

"The report has to be directed to a'covered agency,' but that term is very broadly defined," said Szuch. "To me this covers basically everybody from a local cop in your town to (SEC) Chair (Gary) Gensler at the top."

Are firms required to provide training?

The Senior Safe Act does not mandate any training — no financial firm or regulatory agency is required by law to educate its employees about elder fraud. On the other hand, the immunity the law offers does not apply to anyone unless they've been trained.

So while the Senior Safe Act does not require such training, it does strongly encourage it — just as it encourages people to report the financial exploitation of seniors.

"Intervention is really the name of the game in this space," Szuch said. "You're obviously much better off if you have cover, but if you see something that you believe is wrong, I'm not sure there are any state securities regulators that are going to be out there scolding you for saving somebody's money."

Where is the training available?

More information on the Senior Safe Act and upcoming training webinars can be found on the websites of the SEC, NASAA and FINRA.
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