If we have a situation that looks like elder abuse but which does not directly involve a customer, can we report that as elder abuse?

Based on these facts, our recommendation is that you file a report with the Department of Aging only if the alleged victim is an “eligible adult.”

First, we note that banks and their employees are not “mandated reporters” in Illinois and are not required to report on elder financial abuse. 320 ILCS 20/2(f-5). The elder financial abuse regulations require that bank employees be trained in recognizing and reporting abuse, but they too do not require reporting. 89 Ill. Adm. Code 271.120.

If you do wish to make a voluntary report, the Elder Abuse and Neglect Act authorizes you to report the suspected abuse of an “eligible adult” (an individual over sixty years old who does not live in a nursing home or other type of institution). 320 ILCS 20/2(d). Moreover, the “safe harbor” in the Act provides your bank with immunity for filing a report of suspected abuse if you believe that it is in the elder individual’s best interest to make the report. The safe harbor applies to any person who files a report, irrespective of whether the alleged victim is a customer of the bank. 320 ILCS 20/4(a-7):

(a-7) A person making a report under this Act in the belief that it is in the alleged victim's best interest shall be immune from criminal or civil liability or professional disciplinary action on account of making the report, notwithstanding any requirements concerning the confidentiality of information with respect to such eligible adult which might otherwise be applicable.

However, the Act would not provide a safe harbor if reporting alleged abuse of a victim who is not an “eligible adult” because the individual lives in one of the following types of facilities:

A licensed facility as defined in Section 1-113 of the Nursing Home Care Act [210 ILCS 45/1-113];
A facility licensed under the ID/DD Community Care Act [210 ILCS 47/1-101 et seq.];
A facility licensed under the Specialized Mental Health Rehabilitation Act [210 ILCS 48/1-101 et seq.];
A “life care facility” as defined in the Life Care Facilities Act [210 ILCS 40/1 et seq.];
A home, institution, or other place operated by the federal government or agency thereof or by the State of Illinois;
A hospital, sanitarium, or other institution, the principal activity or business of which is the diagnosis, care, and treatment of human illness through the maintenance and operation of organized facilities therefor, which is required to be licensed under the Hospital Licensing Act [210 ILCS 85/1 et seq.];
A “community living facility” as defined in the Community Living Facilities Licensing Act [210 ILCS 35/1 et seq.];
A “community-integrated living arrangement” as defined in the Community-Integrated Living Arrangements Licensure and Certification Act [210 ILCS 135/1 et seq.];
An assisted living or shared housing establishment as defined in the Assisted Living and Shared Housing Act [210 ILCS 9/1 et seq.]; or
A supportive living facility as described in Section 5-5.01a of the Illinois Public Aid Code [305 ILCS 5/1 et seq.].

Without the safe harbor, you and/or the bank may be liable for defamation or for violation of financial privacy laws. Keeping in mind that reporting this situation would entail disclosing certain nonpublic personal information of a customer (i.e., the existence of the customer’s relationship with the bank and the dates and amounts of the checks written by the customer), we can think of at least four questions that could arise if there is no safe harbor under the Elder Abuse and Neglect Act: (1) would the disclosure violate federal financial privacy laws, (2) would the disclosure violate Section 48.1 of the Illinois Banking Act, (3) if the answers to the first two questions are yes, is there a comparable safe harbor for the disclosure in the Illinois Banking Act or another law for making the disclosure, and (4) if the answer to the third question is yes, could the bank be liable to its customer for defamation or under some other legal theory for making the disclosure, particularly if no finding of financial exploitation is ever made?

For more information on reporting to the Elder Abuse Hotline (866-800-1409), please see the Department on Aging’s website. As stated on the website, possible information that they may request includes:

The alleged victim’s name, address, telephone number, sex, age and general condition;
The alleged abuser’s name, sex, age, relationship to victim and condition;
The circumstances which lead the reporter to believe that the older person is being abused, neglected or financially exploited, with as much specificity as possible;
Whether the alleged victim is in immediate danger, the best time to contact the person, if he or she knows of the report, and if there is any danger to the worker going out to investigate;
Whether the reporter believes the client could make a report themselves;
The name, telephone number and profession of the reporter;
The names of others with information about the situation;
If the reporter is willing to be contacted again; and,
Any other relevant information.

If you require guidance on filing a SAR, we recommend consulting bank counsel and otherwise keeping the existence of the SAR confidential. 31 CFR 1020.320(e).