940 CMR, § 18.05

Current through Register 1531, September 27, 2024

Section 18.05 - Viatical Settlement Disclosures

(1) It is an unfair or deceptive act or practice for a Viatical Settlement Provider, Broker, or Representative to fail to mail to the last known address(es) of, or to provide in person to, the Viator and the Insured the following Attorney General's Viatical Settlement Disclosure Form (the "Form"). This Form shall be completed and mailed to the last known address(es) of, or provided in person to, the Viator and the Insured pursuant to 940 CMR 18.05(7), on a separate document, in at least ten point type or ten pitch courier.

VIATICAL SETTLEMENT DISCLOSURES REQUIRED BY THE ATTORNEY GENERAL'S CONSUMER PROTECTION REGULATIONS

Business Name:

Business or Mailing Address:

Viatical Settlement Provider/Broker/Representative Massachusetts License Number: (if applicable)

Date License Issued:

License Expiration Date:

I am/We are a Viatical Settlement Provider/Broker/Representative. I/We shall not divulge Patient Identifying Information without the express, written consent of the Insured. I/We shall take every reasonable precaution to ensure that those individuals or entities who rightfully obtain Patient Identifying Information do not further divulge such information without the express, written consent of the Insured.

We shall provide the Insured with a copy of this completed disclosure form. We shall attempt to obtain the consent of the Insured to the dissemination of his/her Patient Identifying Information in connection with this Viatical Settlement.

As part of the Viatical Settlement, the health of the Insured will/ will not be monitored. We must obtain the Insured's consent to the following method of monitoring prior to the execution of the Viatical Settlement Contract: (state method in specific, detailed terms).

You will/will not pay an application fee of $ . This fee is/is not refundable.

You will/will not pay a brokerage fee of $ . This fee is/is not refundable.

The Viatical Settlement proceeds shall be maintained in an escrow account until final payment is made to you. We will provide you with the name, address and telephone number of the escrow account agent who will maintain the proceeds pending execution of the Viatical Settlement within two business days of our identifying that escrow account agent.

The proceeds will be sent to you within two business days after the Viatical Settlement Provider, (insert name here, if known) has received your insurer or group administrator's acknowledgment that ownership of the policy or interest in the certificate has been transferred and the beneficiary has been designated pursuant to the Viatical Settlement Contract.

If you have any questions about your legal rights, you should consult your own lawyer, especially before you sign any documents or pay any money or anything of value.

DO NOT sign any application forms with blank spaces or with incorrect information.

PLEASE NOTE:

You do/do not have the RIGHT TO CANCEL this contract within ____ days following any of the following events: [Provide detailed method for cancellation and for effective notification. Include notice of the effects of cancellation and the Viator's responsibilities thereunder.]

We shall not pay a finder's fee to any Person who is providing, or has previously provided, care or services to the Insured, including, but not limited to, any medical or mental health provider, social services provider, attorney, accountant, financial advisor or planner, investment advisor or planner, or any other Person who has a demonstrable conflict of interest in collecting a finder's fee.

Receipt of the proceeds of a Viatical Settlement may adversely affect your eligibility for Medicaid or other government benefits or entitlements. You should obtain advice from the appropriate government agencies regarding the impact such a settlement may have on your eligibility for such benefits before executing the Viatical Settlement Contract.

Some or all of the proceeds of the Viatical Settlement may be free from federal income tax and from state franchise and income taxes. You should obtain advice from a qualified professional tax advisor regarding the tax implications of entering into the Viatical Settlement Contract.

We do/do not meet the requirements of sections 8 and 9 of the Viatical Settlements Model Act of the National Association of Insurance Commissioners. We do/do not meet the requirements of the Model Regulations of the National Association of Insurance Commissioners (relating to standards for evaluation of reasonable payments) in determining amounts paid by such person in connection with such purchases or assignments.

Entering into a Viatical Settlement Contract may cause other rights or benefits, including, but not limited to, conversion rights and waiver of premium benefits which may exist under the policy or certificate to be forfeited by you. You should seek assistance regarding the effect of entering into this Viatical Settlement from a qualified, independent financial advisor.

The proceeds of the Viatical Settlement may be subject to the claims of your creditors.

If you have any problems, please call us at:.

Printed Name and Address of Viator

Please sign and date below after you have received these disclosures.

Signature of Viator

Date:

(2) It is an unfair or deceptive act or practice for a Viatical Settlement Provider, Broker, or Representative to fail to disclose, during the initial meeting with the Viator, its licensing status in Massachusetts.

(3) It is an unfair or deceptive act or practice for a Viatical Settlement Provider, Broker, or Representative to fail to take reasonable steps to communicate the material facts of the transaction(s) in a language that is understood by the Viator and the Insured, respectively. Reasonable steps which shall comply with 940 CMR 18.00 may include, but shall not be limited to:

(a) using adult interpreters; and

(b) providing the Viator and the Insured with a translated copy of the Attorney General's Viatical Settlement Disclosure Form described in 940 CMR 18.05(1) in a language understood by the Viator and the Insured, respectively.

(4) It is an unfair or deceptive act or practice for a Viatical Settlement Provider, Broker, or Representative to fail to mail to the last known address(es) of, or to provide in person to, the Viator and the Insured, prior to the execution of the settlement, written notice of the names of any Persons or entities who shall be paid the death benefit proceeds as a result of the settlement and also the amounts which shall be paid. In the event a Viaticated Policy is sold, transferred or assigned, it is an unfair or deceptive act or practice for each successive Policyowner or Certificate holder to fail to mail its name and address to the last known address of the Insured within 14 days of the transfer of ownership.

(5) It is an unfair or deceptive act or practice for a Viatical Settlement Provider, Broker, or Representative to fail to disclose to the Viator, prior to the execution of the settlement, whether the Viator has the right to cancel the settlement contract in compliance with applicable state law or with a right to cancel provision included by the Viatical Settlement Provider within the contract, and, if such a right to cancel provision is available to the Viator, the disclosure must include the specific method for cancellation and effective notification of such cancellation and the responsibilities of the Viator thereunder.

(6) It is an unfair or deceptive act or practice for a Viatical Settlement Provider, Broker, or Representative to fail to mail to the last known address of, or to provide in person to, the Viator legible copies of the Viatical Settlement application and contract within 48 hours of the contract execution.

(7) It is an unfair or deceptive act or practice for a Viatical Settlement Provider, Broker or Representative to fail to mail to the last known address(es) of, or to provide in person to, the Viator and the Insured, respectively, legible copies of the disclosures described in 940 CMR 18.05(1), within 48 hours after the earliest of the following events:

(a) the receipt by the Viatical Settlement Broker or Viatical Settlement Representative of a written application for a Viatical Settlement; or

(b) the receipt by the Viatical Settlement Provider of a written application for a Viatical Settlement; or

(c) any communication which leads the Provider or Broker to incur any expenses on behalf of the Viator.

(8) It is an unfair or deceptive act or practice for a Viatical Settlement Provider to fail to mail to the last known address of, or to provide in person to, the Viator the following information, at two business days prior to the date the Viatical Settlement Contract is signed by all parties:

(a) the affiliation, if any, between the Viatical Settlement Provider and the issuer of an insurance policy to be viaticated;

(b) if an insurance policy to be viaticated has been issued as a joint policy or involves family riders or any coverage of a life other than the Insured under the policy to be viaticated, the possible loss of coverage on the other lives and that the Viator should consult with his or her insurance producer or the company issuing the policy for advice on the proposed viatication;

(c) the dollar amount of the current death benefit payable to the Viatical Settlement Provider under the policy or certificate; and

(d) the availability of any additional guaranteed insurance benefits, the dollar amount of any accidental death and dismemberment benefits under such policy or certificate and the Viatical Settlement Provider's interest in those benefits.

(9) It is an unfair or deceptive act or practice for a Viatical Settlement Provider, Broker, or Representative to conceal or to fail to disclose to a Viator any fact within the knowledge of the Provider, Broker, or Representative relating to the Viatical Settlement Contract, disclosure of which may have influenced the Viator not to enter into a contract with the Viatical Settlement Provider or Broker.

(10) It is an unfair or deceptive act or practice for a Viatical Settlement Provider, Broker, or Representative to fail to disclose to a Viator, as soon as practicable, any information contained in the disclosures mandated by 940 CMR 18.05(1) which has been changed by the Viatical Settlement Provider or Broker prior to execution of, or within any period provided for the cancellation of, the Viatical Settlement Contract.

940 CMR, § 18.05