48 Section 8. Disclosure to Viator
A. With each application for a viatical settlement, a viatical settlement provider or viatical settlement broker shall provide the viator with at least the following disclosures no later than the time the application for the viatical settlement contract is signed by all parties. The disclosures shall be provided in a separate document that is signed by the viator and the viatical settlement provider or viatical settlement broker, and shall provide the following information:
(1) There are possible alternatives to viatical settlement contracts including any accelerated death benefits or policy loans offered under the viator’s life insurance policy.
(2) That a viatical settlement broker represents exclusively the viator, and not the insurer or the viatical settlement provider, and owes a fiduciary duty to the viator, including a duty to act according to the viator’s instructions and in the best interest of the viator.
(3) Some or all of the proceeds of the viatical settlement may be taxable under federal income tax and state franchise and income taxes, and assistance should be sought from a professional tax advisor.
(4) Proceeds of the viatical settlement could be subject to the claims of creditors.
(5) Receipt of the proceeds of a viatical settlement may adversely affect the viator’s eligibility for Medicaid or other government benefits or entitlements, and advice should be obtained from the appropriate government agencies.
(6) The viator has the right to rescind a viatical settlement contract before the earlier of sixty (60) calendar days after the date upon which the viatical settlement contract is executed by all parties or thirty (30) calendar days after the viatical settlement proceeds have been paid to the viator, as provided in Section 10F. Rescission, if exercised by the viator, is effective only if both notice of the rescission is given, and the viator repays all proceeds and any premiums, loans and loan interest paid on account of the viatical settlement within the rescission period. If the insured dies during the rescission period, the viatical settlement contract shall be deemed to have been rescinded, subject to repayment by the viator or the viator’s estate of all viatical settlement proceeds and any premiums, loans and loan interest the viatical settlement within sixty (60) days of the insured’s death.
(7) Funds will be sent to the viator within three (3) business days after the viatical settlement provider has received the insurer or group administrator’s written acknowledgment that ownership of the policy or interest in the certificate has been transferred and the beneficiary has been designated.
(8) Entering into a viatical settlement contract may cause other rights or benefits, including conversion rights and waiver of premium benefits that may exist under the policy or certificate, to be forfeited by the viator. Assistance should be sought from a financial adviser.
(9) Disclosure to a viator shall include distribution of a brochure describing the process of viatical settlements. The NAIC’s form for the brochure shall be used unless another form is developed or approved by the commissioner.
(10) The disclosure document shall contain the following language: “All medical, financial or personal information solicited or obtained by a viatical settlement provider or viatical settlement broker about an insured, including the insured’s identity or the identity of family members, a spouse or a significant other may be disclosed as necessary to effect the viatical settlement between the viator and the viatical settlement provider. If you are asked to provide this information, you will be asked to consent to the disclosure. The information may be provided to someone who buys the policy or provides funds for the purchase. You may be asked to renew your permission to share information every two years.”
(11) Following execution of a viatical contract, the insured may be contacted for the purpose of determining the insured’s health status and to confirm the insured’s residential or business street address and telephone number, or as otherwise provided in this Act. This contact shall be limited to once every three (3) months if the insured has a life expectancy of more than one year, and no more than once per month if the insured has a life expectancy of one year or less. All such contracts shall be made only by a viatical settlement provider licensed in the state in which the viator resided at the time of the viatical settlement, or by the authorized representative of a duly licensed viatical settlement provider.
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貼現契約書之前，向他方當事人（保單貼現人）揭露相關資訊，其所揭露的 資訊須為獨立的文件且須包括下列資訊：
（1） 對保單貼現人，有其他可能的替代選擇方案，如生前給付、保單質借。
（2） 保單貼現經紀人對保單貼現人，負有受託人義務。須依保單貼現人之指 示或為保單貼現人之利益，代表保單貼現人而為之。
（3） 保單貼現人在獲得貼現給付後，有些可能會被課予聯邦所得稅或州特許 營業稅及州所得稅，故須提供保單貼現人在稅賦上的諮詢協助。
（4） 保單貼現人之貼現給付，可能即為其債權人作為權利主張之標的。
（5） 保單貼現人應先向相關政府部門，詢問其保單貼現給付是否會影響保單 貼現人於醫療補助或其他補助之資格。
（6） 保單貼現人於取得保單貼現給付後的30日內，或保單貼現契約可被履行 時起算之60日內，保單貼現人均有權解除該保單貼現契約。如保單貼現 人於前述之猶豫期間內死亡者，該保單貼現契約應視為已被解除，其貼 現給付或其權利金、貸款及貸款利息等相關費用，應於保單貼現人死亡 之時起的60日內，負返還之責。
（7） 保單貼現提供者，如已收到保險人就有關貼現之保單，其所有權已移轉 予所指定的受益人之通知後，保單貼現提供者應於三個營業日內，將貼 現金額給付予保單貼現人。
（8） 於保單貼現契約之簽訂同時，有可能因而產生其他權益的喪失，此包括 保險契約之轉換權及保費的豁免。就此，應協助保單貼現人向財務專家 請求諮詢。
（9） 應發給保單貼現人小冊子，其上記載有關保單貼現之程序。
（10） 所被要求揭露的文件，應包括下列文字︰「所有經由保單貼現提供者或 保單貼現經紀人取得有關被保險人在醫療上、經濟上或個人之資訊（包 括被保險人本人、其家屬、配偶或其他重要關係人），皆有可能為維持保 單貼現契約之效力而受到揭露。如保單貼現人被要求公開上揭資訊，應
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49 Section 8. Disclosure to Viator
B. A viatical settlement provider shall provide the viator with at least the following disclosures no later than the date the viatical settlement contract is signed by all parties. The disclosures shall be conspicuously displayed in the viatical settlement contract or in a separate document signed by the viator and provide the following information:
(1) The affiliation, if any, between the viatical settlement provider and the issuer of the insurance policy to be viaticated;
(2) The document shall include the name, business address and telephone number of the viatical settlement provider;
(3) Any affiliations or contractual arrangements between the viatical settlement provider and the viatical settlement purchaser.
(4) 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 viator shall be informed of the possible loss of coverage on the other lives under the policy and shall be advised to consult with his or her insurance producer or the insurer issuing the policy for advice on the proposed viatical settlement;
(5) State the dollar amount of the current death benefit payable to the viatical settlement provider under the policy or certificate.
If known, the viatical settlement provider shall also disclose the availability of any additional guaranteed insurance benefits, the dollar amount of any accidental death and dismemberment benefits under the policy or certificate and the extent to which the viator’s interest in those benefits will be transferred as a result of the viatical settlement contract; and
(6) State whether the funds will be escrowed with an independent third party during the transfer process, and if so, provide the name, business address, and telephone number of the independent third party escrow agent, and the fact that the viator or owner may inspect or receive copies of the relevant escrow or trust agreements or documents.
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依Model Act第8條C項規定50，保單貼現經紀人於保單貼現契約簽訂之前，
該經紀人應將下列資訊明確記載於保單貼現契約中或另行以其他文件明確
依Model Act8條D項規定51可知，保單貼現提供者得變更保單之所有權人或
50 Section 8. Disclosure to Viator
C. A viatical settlement broker shall provide the viator with at least the following disclosures no later than the date the viatical settlement contract is signed by all parties. The disclosures shall be conspicuously displayed in the viatical settlement contract or in a separate document signed by the viator and provide the following information:
(1) The name, business address and telephone number of the viatical settlement broker;
(2) A full, complete and accurate description of all offers, counter-offers, acceptances and rejections relating to the proposed viatical settlement contract;
(3) A written disclosure of any affiliations or contractual arrangements between the viatical settlement broker and any person making an offer in connection with the proposed viatical settlement contracts;
(4) The amount and method of calculating the broker’s compensation, which term “compensation” includes anything of value paid or given to a viatical settlement broker for the placement of a policy; and
(5) Where any portion of the viatical settlement broker’s compensation, as defined in Paragraph (3) of this subsection, is taken from a proposed viatical settlement offer, the broker shall disclose the total amount of the viatical settlement offer and the percentage of the viatical settlement offer comprised by the viatical settlement broker’s compensation.
51 Section 8. Disclosure to Viator
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D. If the viatical settlement provider transfers ownership or changes the beneficiary of the insurance policy, the provider shall communicate in writing the change in ownership or beneficiary to the insured within twenty (20) days after the change.
52 Section 8. Disclosure to Viator
E. A viatical settlement provider or its viatical settlement investment agent shall provide the viatical settlement purchaser with at least the following disclosures prior to the date the viatical settlement purchase agreement is signed by all parties. The disclosures shall be conspicuously displayed in any viatical purchase contract or in a separate document signed by the viatical settlement purchaser and viatical settlement provider or viatical settlement investment agent, and shall make the following disclosure to the viatical settlement purchaser:
(1) The purchaser will receive no returns (i.e., dividends and interest) until the insured dies and a death claim payment is made.
(2) The actual annual rate of return on a viatical settlement contract is dependent upon an accurate projection of the insured’s life expectancy, and the actual date of the insured’s death. An annual “guaranteed” rate of return is not determinable.
(3) The viaticated life insurance contract should not be considered a liquid purchase since it is impossible to predict the exact timing of its maturity and the funds probably are not available until the death of the insured. There is no established secondary market for resale of these products by the purchaser.
(4) The purchaser may lose all benefits or may receive substantially reduced benefits if the insurer goes out of business during the term of the viatical investment.
(5) The purchaser is responsible for payment of the insurance premium or other costs related to the policy, if required by the terms of the viatical purchase agreement. These payments may reduce the purchaser’s return. If a party other than the purchaser is responsible for the payment, the name and address of that party also shall be disclosed.
(6) The purchaser is responsible for payment of the insurance premiums or other costs related to the policy if the insured returns to health. Disclose the amount of such premiums, if applicable.
(7) State the name, business address and telephone number of the independent third party providing escrow services and the relationship to the broker.
(8) The amount of any trust fees or other expenses to be charged to the viatical settlement purchaser shall be disclosed.
(9) State whether the purchaser is entitled to a refund of all or part of his or her investment under the settlement contract if the policy is later determined to be null and void.
(10) Disclose that group policies may contain limitations or caps in the conversion rights, additional premiums may have to be paid if the policy is converted, name the party responsible for the payment of the additional premiums and, if a group policy is terminated and replaced by another group policy, state that there may be no right to convert the original coverage.
(11) Disclose the risks associated with policy contestability including, but not limited to, the risk that the purchaser will have no claim or only a partial claim to death benefits should the insurer rescind the policy within the contestability period.
(12) Disclose whether the purchaser will be the owner of the policy in addition to being the beneficiary, and if the purchaser is the beneficiary only and not also the owner, the special risks associated with that status, including, but not limited to, the risk that the beneficiary may be changed or the premium may
not be paid.
(13) Describe the experience and qualifications of the person who determines the life expectancy of the insured, i.e., in-house staff, independent physicians and specialty firms that weigh medical and actuarial data; the information this projection is based on; and the relationship of the projection maker to the viatical settlement provider, if any.
(14) Disclosure to an investor shall include distribution of a brochure describing the process of investment in viatical settlements.
The NAIC’s form for the brochure shall be used unless one is developed by the commissioner.]
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確預測以及被保險人之實際身故之日，並無所謂的「經保證｣之年投資 報酬率。
（3） 該被貼現之壽險保單，不具有流通性，因其到期日無法得以預測且該投 資金額須至被保險人身故時，始得取回。目前亦無次級市場可供購買人 再次銷售該類保單。
（4） 如發行該貼現保單之保險人，於保單貼現投資期間不再經營保險業務 時，保單貼現購買人可能會損失所有的利益或只能取回已大幅降低之少 許利益。
（5） 如保單貼現購買契約中有約定，購買人須負擔該貼現保單之保險費或其 他相關費用之義務者，該等費用有可能減低購買人之投資報酬，如有購 買人之相對人應負支付義務者，應揭露其名稱及營業住所。
（6） 如貼現保單之被保險人，其身體狀況轉而趨於健康時，有關保單貼現購 買人或負擔該保單之保險費及其他相關之費用，如其費用總額得以計算 者，應揭露其總額。
（7） 記載提供信託服務機構之名稱、營業住所及其與保單貼現經紀人之關 係。
（8） 須向保單貼現購買人所收取之信託費用及其他相關費用，皆須揭露。
（9） 記載如所貼現之保單，其後有無效或失效時，保單貼現購買人依該保單 貼現投資契約得請求償還之數額。
（10） 記載當團體保單之轉換權可能有所限制，且如團體保單經轉換，可能 須 支付額外之保費，以及如該團體保單為其他團體保單所終止或取代
（10） 記載當團體保單之轉換權可能有所限制，且如團體保單經轉換，可能 須 支付額外之保費，以及如該團體保單為其他團體保單所終止或取代