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Kent Berk Appeared on Money Radio with Bob Roth on April 24, 2020

April 29, 2020 by Kent Berk Leave a Comment

COVID-19 Resources for Maricopa County, Arizona Attorneys

April 27, 2020 by Kent Berk Leave a Comment

As we continue to deal with the cascading health and economic effects of the Coronavirus (COVID-19), we have compiled and are constantly updating a list of and links to Administrative Orders, Executive Orders and other resources helpful to attorneys practicing in Maricopa County, Arizona.   We will monitor new developments and try to keep the list updated.  Please let us know if you are aware of something that we should include.  In some cases, additional orders have been issued, but not yet uploaded to the Court and other government websites, so they are not yet included here.

Arizona Governor Ducey’s Executive Orders

• April 15, 2020, Expanding Food Options For Commercial Vehicle Drivers
• April 14, 2020, Increased Telemedicine Access for Workers’ Compensation
• April 14, 2020, On the Job Training for Assisted Living Facility Caregivers
• April 9, 2020, The “Good Samaritan Order” — Protecting Frontline Healthcare Workers Responding To The COVID-19 Outbreak
• April 8, 2020, Order Permitting Remote Online Notarization – as specified in ARS § 41-371 et seq. commencing April 10, 2020
• March 30, 2020, Order to Stay Home, Stay Healthy, Stay Connected – Physical Distancing to Mitigate COVID-19 Transmission
• March 26, 2020, Order Re: Continuity of Work (among other things, deferring license renewal deadlines and continuing education requirements for certain licensees)
• March 25, 2020, Order Re: Expansion of Telemedicine
• March 24, 2020, Order Re: Postponement of Eviction Actions
• March 23, 2020, Order Prohibiting the Closure of Essential Services
• March 19, 2020, Order Limiting the Operations of Certain Businesses to Slow the Spread of COVID-19 

Arizona Supreme Court Administrative Orders

• May 7, 2020 letter from Arizona Supreme Court Chief, Justice Robert Brutinel
• April 24, 2020, Order No. 2020-70, Authorizing Limitation of Court Operations During a Public Health Emergency (Replacing  Order No. 2020-60)
• April 16, 2020, Order No. 2020-67 Authorizing a Modification of Court Rules During a Public Health Emergency
• April 16, 2020, Order No. 2020-66 Licensed Fiduciary’s Obligation to Visit Ward (Replacing Administrative Order No. 2020-65)
• April 15, 2020, Order No. 2020-65 Licensed Fiduciary’s Obligation to Visit Ward
• April 6, 2020, Order No. 2020-60 Authorizing Limitation of Court Operations During a Public Health Emergency (Replacing Administrative Order No. 2020-48 and replaced by Order No. 2020-70)
• March 20, 2020, Order No. 2020-51 Authorizing a Modification of Court Rules During Public Health Emergency
• March 18, 2020, Order No.2020-48  Authorizing Limitation of Court Operations During Public Health Emergency (replacing Order No. 2020-47)
• March 16, 2020, Order No. 2020-47 Authorizing Limitation of Court Operations During Public Health Emergency (replaced by Order No. 2020-48)

Maricopa County, Arizona Superior Court Administrative Orders

• April 20, 2020, Order 2020-061 [Probate/Mental Health] Amending the Required Warning Language of Rule 16 (B), Arizona Rules of Probate Procedure
• April 13, 2020, Order # 2020-060 [Ltd. Juris.] In the Matter of Restricting Physical Access to Court Facilities Used by Justice Courts Due to a Public Health Emergency
• April 7, 2020, Order # 2020-059 [Criminal] In the Matter of the Temporary Suspension of State and County Grand Juries
• April 7, 2020, Order # 2020-058 General In the Matter of Special Commissioners and Deferral of Fees and Costs
• April 8, 2020, Order # 2020-057 [Juvenile] Ordering Service by Certified or Registered Mail
• April 6, 2020, Order # 2020-056 [General] Calling Retired Judges to Active Duty
• April 1, 2020, Order No. 2020-055 [General] Restricting Physical Access to Court Facilities Used by Justice Courts Due to a Public Health Emergency
• March 26, 2020, Order No. 2020-048 Restricting Physical Access to Court Facilities Used by Justice Courts Due to a Public Health Emergency
• March 24, 2020, Order No. 2020-046 Discontinuing Public Records Terminal Access During a Public Health Emergency
• March 23, 2020,  Order No. 2020-045 for Temporary Suspension of State and County Grand Juries
• March 23, 2020, Order No. 2020-043 Restricting Physical Access to Court Facilities Due to a Public Health Emergency
• March 19,2020, Order No. 2020-039 Limiting People Present at a Court Procceding During a Public Health Emergency
• March 18, 2020, Order No. 2020-038 Limitation of Justice Court Operations During a Public Health Emergency
• March 17, 2020, Order No. 2020-036 Limitation of Municipal Court Operations During a Public Health Emergnecy

National Resources

• Centers for Disease Control
• World Health Organization

Guidance for Reopening

Guidance For Barbers And Cosmetologists

Guidance For Restaurants Providing Dine-In Services

Guidance For Retail

Other Resources

• ArizonaTogether.org – providing information and links to resources for individuals, businesses and others
• Video: How to wash your hands.

We hope that this list of COVID-19 (Coronavirus) resources Arizona attorneys is useful.  If you are aware of any other orders or information or COVID-19 resources that may be helpful to Arizona attorneys, please let us know.  And, please do not hesitate to contact us if you have any questions.

Federal Government Enhancing Criminal Prosecution of Nursing Home Abuse

April 19, 2020 by Kent Berk Leave a Comment

The United States is growing old!  The National Academy of Sciences Engineering Medicine reports that the number of U.S. citizens ages 65 and older is going to nearly double from 2017 to 2060.  Twenty percent of our country will be over age 60 by 2030, and, for the first time in history, by the year 2034 there will be more people over age 65 than under the age of 18.  We are also seeing this trend in Arizona.  The U.S. Census Bureau estimates that more than a quarter of Arizona’s population will be over age 60 by the year 2030.

OK Boomers – why all the fuss?

Because as people age, people typically need significant care in their daily lives.  This is getting more difficult to achieve, because the number of traditional family caregivers is shrinking.  Decreasing marriage and fertility rates and increasing divorce rates mean that baby boomers will often be alone, with no spouse or adult child to care for them as they age and need help.  Boomers also have higher rates of obesity, creating the likelihood of challenging physical conditions which will require significant assistance from others in those later years.

In addition to physical issues, older adults have a much higher rate of cognitive decline.  In 2018, approximately 5.7 million people in the United States were diagnosed with some form of dementia.  Alzheimer’s disease accounts for 60-80% of these cases. According to the Alzheimer’s Association, “More than 50 percent of residents in assisted living and nursing homes have some form of dementia or cognitive impairment, including Alzheimer’s.” Looking to the future, by the year 2050, nearly 14 million people are expected to suffer from Alzheimer’s disease.  Half of primary care doctors believe that our medical profession is not ready to handle this explosion in dementia patients.

All of this adds up to a dramatic need for assisted living and other services.  According to the U.S.  Department of Health and Human Services, 48% of adults who are 65 years or older will require long-term care for up to 12 months.

One category of care giving for vulnerable adults is nursing homes.  Approximately 1.5 million people over age 65 reside in nursing homes currently.  Unfortunately, this creates a huge population of adults who are easy targets of abuse and neglect.

Nationally, the National Adult Protective Services Association reports:

• One in nine seniors reported being abused, neglected or exploited in the past twelve months
• Elder abuse is vastly under-reported; only one in 44 cases of financial abuse is ever reported
• Abused seniors are three times more likely to die

Regrettably, nursing homes have gained a lot of negative attention with the onslaught of Coronavirus/COVID-19 cases.  As of mid-April 2020, more than 3,600 deaths from this disease in the United States were of nursing home residents.  Officials also fear that the rates of abuse and neglect are rising during these stressful times of isolation.

According to Arizona Adult Protective Services, the second biggest category of alleged perpetrators of abuse and neglect are paid caregivers.  Sadly, fewer than 10% of the complaints in Arizona are ever investigated at all.  And, those that are investigated, are not being investigated for months after the report.  Why is this happening?  There are simply not enough resources to adequately investigate all claims.  Cara Christ, director of the Arizona health department, said her department needs “an additional 44 staff and an additional $3.3 million appropriation and general fund allocation to properly investigate the nearly 2,500 complaints received annually.”

The U.S. Government is Expanding its Prosecution of Abuse Cases

Because of the lack of investigation of these cases by individual states, the Federal government is stepping up.  The Department of Justice, celebrating its 150-year anniversary, has launched the National Nursing Home Initiative, which “will coordinate and enhance civil and criminal efforts to pursue nursing homes that provide grossly substandard care to their residents.“

Attorney General William P. Barr explains, “The department considers a number of factors in identifying the most problematic nursing homes.  For example, the department looks for nursing homes that consistently fail to provide adequate nursing staff to care for their residents, fail to adhere to basic protocols of hygiene and infection control, fail to provide their residents with enough food to eat so that they become emaciated and weak, withhold pain medication, or use physical or chemical restraints to restrain or otherwise sedate their residents.  These care failures cause residents to suffer in pain and to be exposed to the great indignities.”

The initiative falls under the Elder Justice Initiative of the Department of Justice, whose mission is to “support and coordinate the Department’s enforcement and programmatic efforts to combat elder abuse, neglect and financial fraud and scams that target our nation’s seniors.”

For more information about Elder Abuse, visit the Elder Justice Initiative website at https://www.justice.gov/elderjustice/about-elder-abuse.

If you or someone you know has been neglected, abused or financially targeted, resources are available at Arizona Adult Protective Services.  The hotline to call is 1-877-SOS-ADULT  (1-877-767-2385), or you can report online at https://azdes-daas-online.secure.force.com/APS.

Berk Law Group is Here to Help

Fortunately, Arizona also has a robust Adult Protective Services Act (APSA).  APSA includes powerful remedies for abuse, neglect and financial exploitation of Arizona’s large population of vulnerable adults.  Learn more about APSA.

The Attorneys at Berk Law Group are Here to Help

Our attorneys have substantial experience dealing with vulnerable adult claims.  If you have any questions or need assistance in pursuing a claim for vulnerable adult abuse, neglect or financial exploitation in Arizona, please give us a call at 480.607.7900 or contact our office.

SOURCES

https://www.nap.edu/catalog/25064/future-directions-for-the-demography-of-aging-proceedings-of-a

https://acl.gov/sites/default/files/programs/2016-11/Arizona.pdf

https://www.census.gov/newsroom/press-releases/2018/cb18-41-population-projections.html

https://www.prb.org/eight-demographic-trends-transforming-americas-older-population/

https://www.azcentral.com/story/news/local/arizona-health/2020/01/21/suspected-abuse-vulnerable-adults-arizona-rarely-verified-adult-protective-services/2379231001/

https://www.napsa-now.org/get-informed/exploitation-resources/

https://health.usnews.com/health-news/best-nursing-homes/articles/nursing-home-facts-and-statistics

https://www.pbs.org/newshour/show/why-nursing-homes-and-senior-living-centers-yield-covid-19-perfect-storm

Arizona Department of Economic Security – Adult Protective Services – Annual Report 2018

https://www.justice.gov/opa/pr/department-justice-launches-national-nursing-home-initiative

https://www.asha.org/PRPSpecificTopic.aspx?folderid=8589935289&section=Incidence_and_Prevalence

https://www.alz.org/national/documents/release_082807_dcrecommends.pdf

Berk Law Group is Open and Accepting New Matters – Safely

March 26, 2020 by Kent Berk Leave a Comment

Power to Control Disposition of Remains

March 25, 2020 by Dean Brekke Leave a Comment

The death of a loved one is traumatic enough.  Disputes over the power to control the disposition of remains in Arizona only adds to the stress.  So, what happens when a person dies without leaving clear instructions for cremation or burial of his remains? Who gets to decide?

Ghostley- Decedent’s Remains In Purgatory

In the Matter of the Remains of James David Ghostley, Deceased, No. 2 CA-CV 2018-0197, January 22, 2020, these questions were the topic of a Division Two Arizona Court of Appeals decision.

After their son, Mr. Ghostley, died in 2018, his divorced parents disagreed about the proper disposition of his remains. Father filed a Petition in Pima County probate court to resolve the dispute. A hearing was held. A.R.S. § 32-1365.02(J) authorizes “a court of competent jurisdiction” to resolve disputes between persons listed in § 36-831(A) “concerning the right to control the disposition, including cremation, of a decedent’s remains.”

Testimony from the decedent’s girlfriend and his father indicated that the decedent had expressed his wishes to be cremated and his ashes spread in places he loved. Mother testified that she objected to cremation on religious grounds and, because they were very close, her son would not opt for cremation knowing it would cause his mother emotional torment. Another witness testified to the close relationship decedent had with his mother and that they both practiced the same religion that dictates burial and not cremation.

The Court ruled that decedent “wished to be cremated and that cremation is reasonable and that his wishes do not impose an emotional or economic hardship on any party.” The Court also ordered the cremains to be divided between father and mother. Mother appealed.

In its opinion affirming the probate court, the Court of Appeals looked to the Arizona Revised Statutes (ARS) governing who has the power to direct the disposition of human remains in Arizona. ARS § 36-831 lists the priority of who may act. First is a surviving spouse followed by “a person designated” by power of attorney. Section A.5 names the “dead person’s parents.”

Section D states: “If there is more than one member of a category listed in subsection A, paragraph 3, 4, 5, 6, 7, 8 or 9 of this section entitled to serve as the authorizing agent, final arrangements may be made by any member of that category unless that member knows of any objection by another member of the category. If an objection is known, final arrangements shall be made by a majority of the members of the category who are reasonably available.” In this case, there was no majority.

The Court of Appeals first addressed whether the Court had the power to referee the underlying dispute over whether Mr. Ghostley’s remains should be cremated or buried, or just decide who among those with equal priority should make that decision. The Court of Appeals concluded that various “broad language [in the statute], read in the context of the statutory scheme and the pertinent legislative history, authorizes trial courts to resolve the merits of underlying disputes between litigants of equal statutory standing.” Thus, the Court had the discretion to determine the decedent’s wishes, whether there was a relevant hardship and whether any hardship was sufficient to outweigh the decedent’s wishes.

The Court then looked to ARS § 36-831.01(A) which states: “If the person on whom the duty of burial is imposed pursuant to section 36-831 is aware of the decedent’s wishes regarding the disposition of his remains, that person shall comply with those wishes if they are reasonable and do not impose an economic or emotional hardship.”

Mother argued that the probate Court erred in finding that cremation would not result in “emotional hardship”. Looking at the statute giving priority to “the decedent’s wishes,” the Court found that a party’s distress concerning the disposition of a decedent’s remains “constitutes an emotional hardship only when it is sufficiently weighty to overcome the statutory presumption favoring a decedent’s wishes.” In other words, the decedent’s wishes are given priority. There, the Court of Appeals found that the trial Court did not abuse its discretion in finding that mother’s emotional distress did not outweigh the decedent’s wishes to be cremated.

Finally, mother argued that the probate court erred by not applying the common law right of sepulcher. The “right of sepulcher” dates back hundreds of years in common law. The right of sepulcher is the right to choose and control the burial, cremation, or other final disposition of a human body. The Court here ruled that the Arizona statute directly on point overrode any common-law doctrine to the extent that it varied from that doctrine.

The probate court granted mother’s motion to stay cremation pending resolution of the appeal. That means that the remains of Mr. Ghostley waited for disposition since October 2018. Unfortunately, the absence of any written directive of burial wishes allowed this dispute to continue, surely at substantial economic and emotional expense, for well over a year after Mr. Ghostley died.

Burial authority is frequently contained in a Durable Financial Power of Attorney; a Medical Power of Atorney, Healthcare Directive or a Living Will. Also, many religious organizations have prepared detailed language to include in these documents clearly stating their tenets regarding end of life and disposition of remains.

This case is just one more example of why it is important to hire a qualified estate planning attorney and ensure that you have all of your affairs in order. Berk Law Group handles all types of probate, estate and trust disputes and litigation, including burial and disposition disputes, but does not perform estate planning work. We can recommend various estate planning attorneys if you need a referral.

Learn more about the duties and powers to bury or cremate a decedent in Arizona.  If you have any questions about the power to control the disposition of a loved one’s remains in Arizona, please give us a call at 480.607.7900 or contact our office.