A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ADDING SECTION 34-3-900 SO AS TO DEFINE TERMS PERTAINING TO THE FINANCIAL EXPLOITATION OF AN ELIGIBLE ADULT AND TO OUTLINE A PROCEDURE FOR ESTABLISHING EMERGENCY CONTACTS FOR AN ELIGIBLE ADULT TO PROTECT THE ELIGIBLE ADULT FROM FINANCIAL EXPLOITATION.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  Chapter 3, Title 34 of the S.C. Code is amended by adding:

 

Article 13

 

Protecting Eligible Adults from Financial Exploitation

 

    Section 34-3-900.   (A) As used in this section:

       (1) "Financial institution" means any bank, credit union, wealth management institution, or other financial services company. This section excludes a "broker-dealer" as defined in Section 35-1-102(4) and an "investment adviser" as defined in Section 35-1-102(15).

       (2) "Eligible adult" means:

           (a) a person fifty-five years of age or older; or

           (b) a vulnerable adult subject to Section 43-35-10(11).

       (3) "Financial Exploitation" means:

           (a) improper, unlawful, or unauthorized use of the funds, assets, property, power of attorney, guardianship, or conservatorship of a vulnerable adult by a person for the profit or advantage of that person or another person; or

           (b) causing an eligible adult to purchase goods or services or engage in a transaction for the profit or advantage of the seller or another person through undue influence, harassment, duress, force, coercion, or swindling by overreaching, cheating, or defrauding the eligible adult through cunning arts or devices that delude the eligible adult and cause him to lose money or other property.

    (B) If a financial institution reasonably believes that the financial exploitation of an eligible adult has occurred or may occur, then the financial institution may, but is not required to, decline or place on hold any transaction involving:

       (1) the account of the eligible adult;

       (2) an account in which the eligible adult is a beneficiary, including a trust or guardianship account; or

       (3) the account of a person who is suspected of engaging in the financial exploitation of the eligible adult.

    (C) A financial institution may also decline or place on hold any transaction pursuant to this section if an investigative entity or law enforcement agency provides information to the financial institution demonstrating that it is reasonable to believe that the financial exploitation of an eligible adult has occurred or may occur.

    (D) A financial institution is not required to decline or place on hold a transaction pursuant to this section. Such a decision is in the financial institution's discretion based on the information available to the financial institution.

    (E)(1) Any financial institution that declines or places on hold a transaction pursuant to this section shall:

           (a) make a reasonable effort to provide notice, orally or in writing, to all parties authorized to transact business on the account from which the transfer or disbursement was declined or placed on hold; and

           (b) report an incident involving a vulnerable adult to the appropriate investigative entity in accordance with Section 43-35-25.

       (2) Notwithstanding the provisions of this subsection, a financial institution has no duty to notify any party that is suspected of financial exploitation pursuant to this section.

    (F) Any decline or hold of a disbursement or transaction as authorized by this section will expire upon the sooner of:

       (1) a determination by the financial institution that allowing the transaction will not result in the financial exploitation of an eligible adult;

       (2) thirty business days after the date on which the financial institution first declined or placed on hold the transaction unless an appropriate investigative entity as set forth in Section 43-35-10(5) requests that the financial institution extend the delay, in which case the delay shall expire no more than fifty-five business days after the date on which the financial institution first declined or placed on hold the transaction; or

       (3) the order of a court of competent jurisdiction.

    (G) A financial institution may provide access to or copies of records relevant to the suspected financial exploitation of an eligible adult to law enforcement agencies or investigative entities responsible for administering the provisions of this section. Such records may include relevant historical records and recent transactions relating to suspected financial exploitation.

    (H) If the determinations and actions of a financial institution or an employee of a financial institution are made in good faith and in accordance with the provisions of this section, then the financial institution or employee shall be immune from criminal, civil, or administrative liability for declining transactions to disburse monies pursuant to this section, and for taking actions in furtherance of a determination, including making a report or providing access to or copies of relevant records to an investigative entity or law enforcement agency. Nothing in this section is intended to nor does it limit or shield in any manner a financial institution from civil liability against any claim, including reasonable attorneys' fees, costs, and litigation expenses, for participating in or materially aiding the financial exploitation of an eligible adult. Any such claims shall be asserted by the eligible adult, or on his behalf by an appropriate guardian or representative who is not involved in or otherwise suspected of participating in the financial exploitation of the eligible adult, by filing a civil action in circuit court.

    (I)(1) A financial institution may offer to a customer who is an eligible adult the opportunity to submit and periodically update a list of individuals or entities that the eligible adult authorizes the financial institution to contact when the financial service provider has reasonable cause to suspect that the eligible adult is a victim or a target of financial exploitation.

       (2) A financial institution that has reasonable cause to suspect that an eligible adult is the victim or target of financial exploitation may convey the suspicion to one or more of the following, provided that the person is not the suspected perpetrator:

           (a) an individual or entity on the list described in subsection (a), if a list has been provided by the eligible adult to the financial service provider;

           (b) a co-owner, additional authorized signatory, or beneficiary on the eligible adult's account at the financial institution; or

           (c) a parent, spouse, adult child, sibling, or other known family member or close associate of an eligible adult.

       (3) When providing information under this section, a financial institution may limit the information and disclose only that the financial institution has reasonable cause to suspect that the eligible adult may be a victim or target of financial exploitation without disclosing any other details or confidential personal information regarding the financial affairs of the eligible adult.

       (4) A financial institution may choose not to contact one or more individuals or entities on the list provided pursuant to subsection (a) if the financial institution suspects that the person or persons are engaged in financial exploitation.

       (5) If the determinations and actions of a financial institution or an employee of a financial institution are made in good faith and in accordance with the provisions of this section, then the financial institution or employee shall be immune from criminal, civil, or administrative liability for making communications pursuant to this subsection and for taking actions in furtherance of a determination, including making a report or providing access to or copies of relevant records to an investigative entity or law enforcement agency.

 

SECTION 2.  This act takes effect upon approval by the Governor.

----XX----