Can Wall Street Protect the Elderly From Getting Scammed?

INDIANAPOLIS (TheStreet) -- It may be time to ditch this writing gig, because an officer at a Nigerian bank sent an email on Monday ("My Dear Beneficiary!") telling me that a bunch of big shots "at the World Bank in Switzerland" have put aside $45.5 million for me. All I need to do is fill out a few forms and send a $300 check for the shipping of my ATM card, which will let me withdraw "a minimum" of $50,000 a day.

So, OK, the World Bank is actually in Washington, D.C. and maybe I should be skeptical that my email pal dropped the name of the wrong guy when he said the president of the World Bank had set up a payment system for me.

You and I know this is a scam. But our mothers, fathers, grandmothers and grandfathers don't always know. And they fall for this stuff way too often.

An association of state securities regulators had its annual meeting in Indianapolis this week, and the issue of seniors and their money was at the top of their worry list. The North American Securities Administrators Association, or Nasaa, announced Tuesday that 16 regulators, medical experts, academics and financial professionals would be part of a new advisory council to tackle issues of financial abuse of the elderly -- in particular, those with diminished capacity.

More than a third of state regulators' enforcement cases involve victims 62 years and older, and the group's leaders have only to look at demographics to know their caseload is going to swell as baby boomers increasingly reach retirement age.

Thirty-five percent of people 71 and older have mild cognitive impairment or full dementia, according to Robert E. Roush, director of the Texas Consortium Geriatric Education Center. Seniors with mild cognitive impairment make four times the financial errors than those without the condition, he said.

What to do? Among possibilities discussed this week were exemptions from a brokerage firm's obligation to execute a trade if they see evidence that a scamster is after a senior's money. Another idea: To find ways the firms can alert family members or regulators without violating privacy obligations. Katrina Cavalli, a spokeswoman for the Wall Street lobbying group Sifma, or Securities Industry and Financial Markets Association, said in an email that the group was "looking at legislative or regulatory opportunities" that would help advisers and brokers protect their clients.

I have to admit that I'm having a hard time processing Wall Street's new concern to protect seniors when the industry has shown itself to be an avaricious exploiter of so many of its customers in the past.

But the ideas that are getting kicked around aren't bad ones, either. So for the moment, let's take the industry at its word that it's genuinely concerned about looking after its elderly clients who are cognitively impaired.

For starters, brokerage firms have to figure out which seniors need their oversight. A senior who withdraws all his money and runs off to Bimini could be making an informed decision that he "wants to live La Vida Loca," said Bryan J. Lantagne, director of the Massachusetts Securities Division, on a panel on Sunday. But it could also mean the customer has decision-making impairment or is under undue influence, he added. "How do we determine that?

Ron Long, director of elder client initiatives and regulatory affairs at Wells Fargo Advisors, said his firm set up a team of five earlier this year to address concerns over elderly clients. They plan to add a social worker to help the firm better understand senior issues.

Wells Fargo has seen clients amass money in their younger years who "hit 75 or 80 and they believe the Nigerian prince wants to send them $20 million if only they give their bank account numbers," he said.

But here's the problem when brokers try to help. They have an obligation to do what the client asks them to do, even if it's wiring all the money to that prince. They also have privacy obligations that can make it tough to contact a family member.

"Industry-wide, we need some sort of authority to allow us to delay or decline a transaction if we suspect elder financial abuse," said Long. "Ten business days where we can tell the Nigerian prince the money won't go through, but he can feel free to come into court" and explain to a judge why the investor should send him $50,000.

The industry has highlighted two problematic scenarios to state regulators. One is the situation where a senior has a "drifting portfolio" in which a stock or asset is declining rapidly. If the firm reached out to a senior and recommended a sale, but the investor didn't understand the rationale for selling, could the firm make the decision for the customer?

The other was the suspicion of fraud. Can a brokerage firm refuse to follow through when an elderly client wants to wire a large amount to an operation that looks bogus?

A firm that makes that decision runs the risk of getting sued by a senior who might indeed have been pursuing a legitimate investment, said Tanya Solov, director of the Illinois Securities Department. "This is one where we do sympathize with the industry," she said in an interview. "The client could say 'You blew the opportunity for me.'"

Seniors whose requests are declined may also protest that the brokerage firm refused to execute a transaction because they didn't want to lose the account. That's why brokers need to have a "robust" internal process that is followed when they see red flags in a senior's request, said Charles Sabatino, director of the Commission of Law and Aging of the American Bar Association.

Sabatino said part of the process is sizing up the elderly client to get an idea of whether he or she has the capacity to make decisions. The problem is, when seniors visit lawyers and other professionals, they often arrive with a family member or caregiver who speaks for them.

"When family members answer all the questions, it makes it difficult for us to determine our clients' level of understanding," he said. The ABA has put together a pamphlet "Why am I left in the waiting room," which "really diffuses the potential anger of family members" who are asked to leave the room. Brokers could consider a similar interview method.

It's going to be tricky for Wall Street and its regulators to solve these issues. If firms wind up getting some sort of exemption that gives them discretion over a senior's portfolio when they suspect fraud, it could open the door to abuse by the firm itself.

Indeed, with all the talk about brokerage firms trying to find a way to protect their senior clients from Nigerian princes and sleazy Ponzi types, it was a little weird that I didn't hear anyone talking at the regulators' conference about the egregious examples of brokers themselves taking seniors to the cleaners.

And sadly, even on those occasions when senior-fleecers among brokers get caught, they can slip by with time-outs of as little as three months by the regulators at Finra. After that, they're set loose to target their next prey.

I never underestimate the ability of the securities industry to turn a well-intentioned rule into a self-serving boondoggle. That said, giving the firms flexibility to watch out for vulnerable clients might do some good. With a little luck, while the industry is keeping one eye on that Nigerian prince, it will have the other homed in on its salespeople just down the hall.

More from Opinion

50 Stocks That Could Be Shredded If a U.S. Trade War With China Ignites

50 Stocks That Could Be Shredded If a U.S. Trade War With China Ignites

7 Takeaways From Google's $550-Million Investment in Alibaba Rival JD.com

7 Takeaways From Google's $550-Million Investment in Alibaba Rival JD.com

It's Just Not Smart For Investors to Ignore the Threat of a Trade War

It's Just Not Smart For Investors to Ignore the Threat of a Trade War

To Think a Trade War's Still Just a Threat Is the Dumbest Thing on Wall Street

To Think a Trade War's Still Just a Threat Is the Dumbest Thing on Wall Street

Flashback Friday in Politics: Trade Wars, Manafort, Immigration Dominate Minds

Flashback Friday in Politics: Trade Wars, Manafort, Immigration Dominate Minds