Anyone who grew up in the New York City area as I did watched sportscaster Warner Wolf. His signature phrase was “Let’s go to the videotape!” whenever he introduced a highlight of an amazing layup or a baseball smacked into the stands. As incongruous as this might sound, I thought of that phrase recently when I listened in on a webinar about the aftereffects of the conviction of Glenn Neasham on felony theft for selling an annuity to an 83-year-old client.
It was clear from the discussion that the Neasham case will continue to reverberate within the annuity industry and may fundamentally change how advisors sell to elderly clients. The webinar, “The Glenn Neasham Case: Lessons Learned,” was sponsored by the Society of Financial Service Professionals and moderated by Richard M. Weber, president of the Ethical Edge, Inc.
One suggestion floated was to record or videotape all client meetings.
Said Marc Silverman, head of Silverman Financial, “You’d be amazed by how many non-lawsuits there are when you record sessions.”
Burke Christensen, a business and insurance law professor at Eastern Kentucky University, also supported the idea of videotaping client meetings. “The question of competency arises [only] after the client is incompetent. The jury sees the ailing person and assumes they were that way when transaction took place,” he said.
Other safeguards were suggested as well, such as bringing in family members when discussing a sale with a senior; taking copious notes; completing a detailed fact-finder; asking the elder a series of high-level questions about the product in question; obtaining a medical certificate attesting to the senior’s mental competency; and possibly setting up a trust for a client so that a trustee or conservator handles the senior’s affairs, thereby potentially insulating an agent from a lawsuit.
In some instances, an advisor may want to forgo selling to anyone over the age of 65. Silverman said most of his clients are between the ages of 50 and 65, with very few over 70.
“I have chosen for exactly the way that this case has gone down not to play in that sandbox, meaning, over age 75,” he said. “My concern is no matter how careful you are, no matter whether you voice record what you are doing, if somebody wants to get you they are going to get you one way or another as in this case.”
Silverman also said that he insists a family member sit in when he works with a senior. “I don’t want one of the children who wasn’t in the meeting [with a senior] to come back to me and say, you recommended this to my parents and the investment didn’t work out well, or it’s not what they understood so we’re going after you.”
However, even that might not be an ideal solution, since, as Weber pointed out, many seniors would prefer to keep their financial affairs private from their children.
Particularly perplexing for the panelists was the question of just how are advisors supposed to ascertain a senior’s cognitive abilities, something they have no training for? And as several panelists stressed, complicated products like annuities are difficult for most people, of any age, to comprehend.
Maribel Gerstner, president and COO at Allstate Financial Services, the company’s broker-dealer arm, said that her company does some training for its reps on how to spot cognitive impairment, yet it in no way makes them medical experts. “We’re kidding ourselves if we think we can make assessments of mental capacity,” she said.
Even if an advisor detects a problem, what do they do then? “Elderly individuals still need help with their financial matters,” she said.
Annuity expert John Olsen, president of Olsen & Marrion, LLC, called it a classic “catch 22” situation. “We can be held liable to make a determination about a client when we have no training to make such a determination. If try to do so, with the skills we have, we’re left with hoping that these are sufficient. There are no existing safe harbors.”
Olsen called on the NAIC to resolve the issue. “We must be given assurance that if we do certain things, we will be OK. Otherwise, nothing we can do will protect us.”
Guy Kornblum, a San Francisco-based insurance lawyer, said that while videotaping and asking detailed questions are good, even those procedures may not be enough to totally insulate an advisor from legal action. A senior “can disguise” their mental state, Kornblum said. Therefore, there might need to be third-party verification of mental competency, such as by a medical doctor, trustee, legal advisor or family member, he added.
But what do you think? Is it time for advisors to videotape meetings with senior clients? What procedures have you instituted in the wake of the Neasham verdict?
Maria Wood is the annuity channel editor for LifeHealthPro.com and managing editor of Senior Market Advisor.