The document provides information to protect income and assets for elderly Americans. It discusses laws protecting social security income from creditors through notifying them in writing that social security is the only source of income. It also summarizes Kansas laws exempting certain assets like a residence, vehicles, retirement funds and life insurance from creditors. The document aims to help seniors avoid financial exploitation and bankruptcy by understanding their rights regarding debt collection and creditor lawsuits.

2. Publishing a list of consumers who refuse to pay their debts or advertise your debt (except to a credit bureau) or give false information about you to anyone

3. Repeatedly using the telephone to annoy someone or telephone people without identifying themselves

4. Falsely implying that they are attorneys or government representatives or misrepresent the involvement of an attorney in collecting a debt

5. Falsely implying that you have committed a crime and will be arrested if you do not pay your debt

6. Giving a false name when they contact you or falsely represent that they operate or work for a credit bureau

7. Misrepresenting the amount of your debt or claim they will seize, garnish, attach, or sell your property or wages, unless the collection agency or creditor intends to do so, and it is legal to do so

8. Indicating that papers being sent to you are legal forms when they are not or indicate that papers being sent to you are not legal forms when they are or send you anything that looks like an official document from a court or government agency when it is not

9. Claiming that actions, such as a lawsuit, will be taken against you, which legally may not be taken, or which they do not intend to take.

10. Collecting any amount greater than your debt, unless allowed by law

11. Using obscene or profane language

12. Depositing a post-dated check prematurely

13. Taking or threatening to take your property unless this can be done legally

14. Making you accept collect calls or contacting you by postcard

15. Calling your employer, neighbors, friends and relatives and revealing your delinquency to them [A delinquency can be revealed to a co-signor.]Note that the Fair Debt Collection Act regulates debt collection agencies and attorneys and does NOT apply to original creditors. However, most major creditors have adopted collection policies that do not violate the Fair Debt Collection Practices Act. If you believe a creditor is harassing you or violating the law, contact an attorney and/or complain to the State Attorney General's Office. Creditors who violate the law can also be reported to the Federal Trade Commission. Protect Your Social Security When living only on social security Americans have the impossible task of planning life around the impossible, a perfect financial outlook, where there are no surprises and all financial decisions are predictable. Unfortunately it is common for those living solely on social security to fall into the trap of not making ends meet because something unexpected happens on the financial front. Nothing is ever predictable and so unfortunately, when something unpredictable occurs, persons on social security inevitably have difficulty paying creditors. The problem is only exacerbated when a creditor gets a civil judgment against the individual and then garnishes a bank account. A sad story I have dealt with the situation where an elderly lady had her bank account emptied because a creditor garnished it. Her only means of support was the social security funds in the account. When the garnishment occurred it made it impossible to pay bills, buy groceries and pay for prescriptions. It took some time, but all funds were eventually recovered, the money was returned, but it was too late because some irreparable damage had been done, including losing her home. Federal law protects your social security income If you are living on Social Security, and you have a civil judgment against you it is vital that you protect your social security. The most important thing for you to remember is that there are federal laws on the books to prevent creditors from getting to your social security but you have to notify your creditors, who have civil judgments against you that you only have as income social security. What can I do? The most important thing you can do is send a notarized letter directly to your creditor (keep a copy) tell them that your only source of income is social security. You should also send a letter to the Court where the judgment was obtained. When you send your letter to the Court make certain you reference your case number and specifically tell the Court what bank your social security funds are deposited in. You should provide the account number to the Court. The letter should be notarized and a copy should go directly to the creditor and your bank. You should save a copy of the letter for your records. Instead of sending a letter you could use the sample affidavit that at the end of this appendix in this packet; simply fill in the blanks. If you accomplish all of the above then the creditor will not be able to garnish your bank account, and your social security will be protected. If you are uncertain about how to do all of the above then you can contact an attorney and he/she will draft an affidavit with everything listed above in it. If you have been a victim of a wrongful garnishment you should seek legal advice because the money can be returned to you. The important thing is to protect your income. Do not ignore creditors, as they will do all they can to get their money. If you need assistance recovering social security income, and are 60 or older you may contact the Kansas Elder Law Hotline at 1-888-353-5337 and you can be set up with an attorney in your area. You may also visit with the Senior Law Project attorney during their visit to a nearby Senior Center. There is no charge for the legal work of the Senior Law Project attorney, who is funded by your local Area Agency on Aging. Kansas Law protects other assets from creditors The State of Kansas exempts the property and income below from seizure by any court to pay creditors (Some items listed apply only in bankruptcy cases). Real Estate Real property or mobile home used as residence, unlimited value, up to one acre in town or city or 160 acres on farm [60-2301 and Kansas Constitution 15-9]. Personal Property Household furnishings and equipment, unlimited amount [60-2304(a)]; books, documents, furniture, instruments, breeding stock, equipment, seed, livestock and grain used in farm business, up to $7,500 total [60-2304(e)]; clothing, amount needed for one year [60-2304(a)]; food and fuel, amount needed for one year [60-2304(a)]; motor vehicle up to $20,000 (unlimited amount if vehicle equipped for disabled person) [60-2304(c)]; National Guard uniforms, arms and equipment, unlimited amount [48-245]; funeral plan prepayments, unlimited amount [16-310(d)]; burial plot or crypt, unlimited amount [60-2304(d)]. Insurance & Annuities Life insurance proceeds if policy prohibits proceeds from being used to pay creditors, unlimited amount [40-414(a)]; cash value of life insurance if bankruptcy filed at least one year after policy issued, unlimited amount [40-414(b)]; fraternal life insurance benefits, unlimited amount [40-414(a)]. Pensions & Retirement Plans Retirement benefits, unlimited amount [60-2308(b)]; firefighters and police officers, unlimited amount [12-5005(e)]; public employees, unlimited amount [74-4923]; judges, unlimited amount [20-2618]; federal government pension payments paid within three months of filing bankruptcy, unlimited amount [60-2308(a)]; elected and appointed officials in cities with populations between 120,000 and 200,000, unlimited amount [13-14-102]; state highway patrol officers, unlimited amount [74-4978g]; state school employees, unlimited amount [72-5526]. Public Benefits & Entitlements Unemployment compensation, unlimited amount [74-7313(d)]; workers' compensation, unlimited amount [44-514]; aid to families with dependent children, general assistance and welfare benefits, unlimited amount [39-717]; crime victim's compensation, unlimited amount [74-7313(d)] Wages: 75% of earned but unpaid wages [60-2310]. Beware of Financial Exploitation One of the most vulnerable groups in America today is the elderly. The elderly suffer all forms of abuse, including physical and emotional abuse, however, an often forgotten form of abuse is that of financial abuse, also known as financial exploitation. Who are the exploiters? A recent survey of various financial institutions with elderly clients revealed that 83 percent of the institutions suspected that some of their elderly clients were victims of financial exploitation. Forms of suspected exploitation included exploitation of the elders' finances by substance-abusing relatives, roommates, neighbors, attendants at a nursing facilities, or boarders; other forms of exploitation include misappropriation of cash or belongings; and abuse of the power of attorney. Banks sometimes don’t report exploitation for fear of being sued A survey was done of a small number of banks in the New York City, and it revealed that the most common forms of financial exploitation of their elderly customers were forgery, misappropriation of funds, abuse of joint accounts, and abuse of the power of attorney. The responding banks said that the most common person taking advantage of the elderly client was a relative. It is shocking, but only 43 percent of the banks said they always reported the exploitation. Most banks never report the exploitation for fear of backlash or worry about lawsuits. You may know of someone who is being taken advantage of, and you should report it to law enforcement. Here are some clues that someone is being exploited financially: Unusual activity in a bank account, including activity inconsistent with the victim's ability, such as the use of an automatic teller machine on an account of a bedridden elder, New acquaintances of the elder expressing a desire to reside with the elder; Loss of amenities, such as the disconnection of utilities, when the elder is known to afford such amenities; or sudden decline in health and/or hygiene of the elder, as money may be spent items wanted by the person exploiting the elder (illegal drugs or even frivolous purchases) and not the elder’s medication or other supplies; Depression, especially when an onset occurs when a new roommate or relative has moved in; New signees or unusual activity on credit cards, for example, someone purchasing items that are of no use to the elder. Suspicious signatures on documents, particularly if the elder is capable of writing as one who can sign for himself/herself can sign and needs nobody to sign for him or her. If you know of an elderly person who is being exploited financially and they live at home call 800-922-5330, and if they reside in a nursing home-type facility call 800-842-0078 and report it. If it sounds too good to be true, it’s not Some forms of financial exploitation occur when con artists trick individuals into participating in investment scams or bogus charitable organizations. Newsweek recently reported that 5 million elderly people are victims of financial exploitation every year, and that an enormous number of baby boomers are heading for retirement, putting America on the verge of an elder fraud epidemic. Many cases of exploitation go unreported by seniors because many are either too embarrassed about being duped or unaware that the theft is happening. Individuals should be cautious of participating in “too good to be true” investment opportunities. If it is “too good to be true” then it probably is not true. If you know of a scam or are a victim you should report it the Kansas Attorney General Consumer Hotline: (800) 432-2310. Our country has experienced a number of recent disasters and many will come to you seeking financial assistance. It is best to stick to well-known organizations and decline to give out funds to organizations you have never heard of. Protect your identity check your credit report Another form of financial exploitation occurs when identities are stolen. Often, the elderly neglect to check their credit reports to be certain nobody is taking advantage of them. Due to a recent change in the law, as of September 1, 2005, everyone can get a free copy of their credit report annually from all three of the major credit reporting agencies. Getting a copy of your credit report can be accomplished by one of three ways: 1) visiting www.annualcreditreport.com 2) calling the toll free number of 877-322-8228, or 3) completing an Annual Credit Report Request Form and mailing it to “Annual Credit Report Request Service” P.O. Box 105281, Atlanta, GA 30348-5281; the form can be obtained from www.ftc.gov/credit or can be provided to you by a local Kansas Legal Services Office. Always remember, “An ounce of prevention is worth a pound of cure!” and protect yourself and those around you. If you are age 60 or over and have more specific questions about protecting yourself or reporting financial exploitation please call the Kansas Elder Law Hotline at 1-888-353-5337, or you can set up a time to meet with a Senior Law Project Attorney in your area. The Senior Law Project Attorney is funded by your local Area Agency on Aging. Elder Abuse; More Likely to Occur In the Home Whether old or young abuse of all kinds (physical, sexual, emotional, or financial) is something one doesn't have to put up with. The Elderly are especially vulnerable to being abused, and many families are in denial that abuse of elders has occurred in their own homes. Institutional abuse is rare Occasionally we read of some shocking incident of elder abuse in a nursing home. We read of nursing home staff that has neglected to treat the elderly in their care, or even worse that have actively beaten or injured the person in a malicious way. Stereotypically many believe that the elderly are more likely to be abused by nursing homes, or other professionals who work in private professional institutions. Many elderly fear the nursing home or other institutional setting because of the belief that they will be abused and/or neglected in such a setting. Shockingly, the statistics paint a different picture. Did you know that most incidents of elder abuse do not happen in a nursing home, or in a nursing-home type facility? Shockingly, the reality is only about four percent of older adults live in nursing homes, and the vast majority of nursing home residents have their physical needs met without experiencing any abuse or neglect. Most elder abuse and neglect takes place within the confines of the home. The usual abusers are family members, other household members, and paid (home health) caregivers, the very persons society trusts the most. The most common relationships of victims (60 and older) to alleged perpetrators were adult children (32.6%) and other family members (21.5%), according to a 2004 Survey of State Adult Protective Services. Even more shocking was the fact that the likely abuser is female. Abuse in the home is more common There is no single pattern of elder abuse in the home. At times the abuse is a continuation of long-standing patterns of physical or emotional abuse within the family. It is more common that the abuse is related to changes in living situations and relationships brought about by the older person’s growing frailer and becoming more dependent on others (around them) for companionship and for meeting basic needs. An example of abuse in the home The following example was taken from a recent online publication addressing the topic of Elder Abuse; it outlines a common scenario: Agnes, 85 years old, lost her husband last year. Because of her own problems with arthritis and congestive heart failure, Agnes moved in with her 55-year-old daughter, Emily. The situation is difficult for all of them. Sometimes Emily feels as if she’s at the end of her rope, caring for her mother, worrying about her college-age son and about her husband, who is about to be forced into early retirement. Emily has caught herself calling her mother names and accusing her mother of ruining her life. Recently, she lost her temper and slapped her mother. In addition to feeling frightened and isolated, Agnes feels trapped and worthless. While it is understandable for the Elderly who are in a position similar to Agnes' to feel helpless, they should not, as there is help out there. While it is true that the infirm or mentally impaired are more vulnerable to abuse, those who do not have these obvious risk factors can find themselves in abusive situations as well. Do not tolerate abuse as there are legal remedies available, and those remedies should be utilized. Your Remedies! Call the police. If you are being subjected to physical abuse of any kind you should call the police. Doing such a thing could drastically change any given situation, and it could possibly land a family member or friend in jail, however, your safety is more important. Contact Adult Protective Services. 800-922-5330 (Statewide Hotline, reporting only open 24 hrs a day). Explain the situation to them and have them open an investigation. Report abuse to your doctor or other professional. If you cannot contact Adult Protective Services (because you are afraid to make the attempt) directly then you should tell your doctor and ask him or her to remain a confidential informant. You can usually make a report to your doctor in confidence and ask that the information shared remain in confidence. Taking this step protects you, as your doctor will not (should not/cannot) disclose what you told them to the family member or abuser. Under Kansas Law your physician is a mandatory reporter and will notify authorities. Usually Adult Protective Services will get involved and open an investigation. If abuse is confirmed then Adult Protective Services will work closely with other agencies (including law enforcement) in the community to ensure your health and safety. Contact your local Family Crisis Center. The Kansas Coalition against Sexual and Domestic Violence is a resource available Statewide. Violence is not something that only affects younger individuals. If you want local help call toll free, 888-END-ABUSE (888-363-2287) and you will be connected with an advocate who can assist you with getting out of an abusive situation. Talk to an Attorney. Call the Elder Law Hotline (Toll Free) 888-353-5337. If you are a caregiver and believe you have been abusive, or are in danger of abusing an older person in your care, there is help available for you as well. You should find ways of giving yourself a break and temporarily relieving the tension of having total responsibility for an older person who is completely dependent on you. There are many local respite or adult day care programs to help you, contact your local Area Agency on Aging (North Central Flint Hills Area Agency on Aging, 800-432-2703) for help. If you suspect abuse, do not allow your fear of meddling in someone else’s business stop you from reporting your suspicions. You could be saving someone’s life, and drastically improve the quality of their life; call the police or Adult Protective Services. APPENDIX Letter to Creditor Date: Re:Account Number: To Whom It May Concern: This letter is to inform you that I have been in contact with an attorney and they have advised me that I am what they call “judgment proof.” My sole income is made up of Social Security benefits which must first be used to provide for my shelter, food and living necessities. I understand that you can sue me and take me to court, but you cannot garnish my bank account because it is solely made up of Social Security benefits. Under state and federal law, as required by K.S.A. 60-2313 (and other statutes) as well as 42 U.S.C. (United States Code) Section 407(a), those funds are not garnishable. My circumstances will not likely change. I am also requesting that you stop communications with me as required by the Fair Debt Collections Practices Act 15 U.S.C. §1692c(c). I will not make any additional payments on this debt. I also respectfully request that you consider charging this debt off considering my circumstances. Your cooperation and attention to this matter is greatly appreciated. Sincerely, Prepared by: ___________________________ ___________________________ ___________________________ IN THE DISTRICT COURT OF ______________ COUNTY, KANSAS ___________________________PLAINTIFF vs.Case No. ______________ ___________________________DEFENDANT Pursuant to Chapter 61 of Kansas Statutes Annotated AFFIDAVIT AND NOTICE TO JUDGEMENT CREDITOR THAT ONLY INCOME IS SOCIAL SECURITY STATE OF KANSAS) ) SS: _________ COUNTY) COMES NOW the undersigned, _______________________, Defendant, being of lawful age and duly sworn under oath, states: That my only income has been and continues to be income payments from Social Security; That my Social Security is approximately $_______________ per month; 3.That I anticipate no change in my circumstances in the foreseeable future, and as such all past and future deposits into my personal account will be and are funds received from Social Security; and 4. That the Judgment Creditor herein SHALL NOT be allowed to garnish said amounts because they are exempt under federal law, and state law under K.S.A. 60-2308. 5.That the said funds are necessary to pay for my day to day living expenses and for the maintenance and support of my family. WHEREFORE for the above and foregoing reasons, I pray that any requests for a garnishment of said account not be allowed. FURTHER AFFIANT SAITH NOT. DateName of Defendant SUBSCRIBED AND SWORN TO BEFORE ME, a Notary Public, on this the ____ day of ___________, 20___. Notary Public My Appointment Expires: CERTIFICATE OF SERVICE I hereby certify that I caused a true and correct copy of the above and foregoing Affidavit to be mailed to the creditor/plaintiff (name and addresses shown below) by depositing the same in the United States Mail, first class postage prepaid this ____ day of ___________, 20___. _____________________________ _____________________________ _____________________________ Defendant, Pro Se The information in this booklet is provided as a public service by Kansas Legal Services, It was compiled by Paul Shipp (Managing Attorney in the Flint Hills Offices of Kansas Legal Services). It was written to provide you with helpful information regarding the subject matters covered. This publication must not be used as a substitute for the advice of an attorney. If you require legal advice then you should seek out a qualified, competent attorney. Distributed by the Flint Hills Offices of Kansas Legal Services, 104 South Fourth Street, Manhattan, KS 66502; Phone: 785-537-2943. For assistance with Elder Law Questions, Call: 1-888-353-5337 If you need any of the articles contained within this pamphlet in larger print or alternative media so that you can review it please feel free to contact the Flint Hills Offices of Kansas Legal Services directly. Anyone may copy and reproduce the information contained herein so long as no fee is charged to the recipient. Copyright © 2009 By Kansas Legal Services This publication may be reproduced and distributed provided it is done at no cost to the recipient. Funded in part by the North Central Flint Hills Area Agency on Aging