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.”