Berk Law Group, P.C., a preeminent probate law firm in Scottsdale, Arizona, is pleased to announce that Sarah E. Epperson has joined the firm as an associate attorney. Sarah’s practice is focused on probate, trust and estate litigation and other contested estate matters, and administration.. She also has broad experience in the areas of civil and commercial litigation and civil appeals.
Epperson is an Arizona native who earned her B.A. in Political Science from the University of Arizona, summa cum laude, and her J.D. from the University of Arizona, James E. Rogers College of Law in 2013. She is a member of the Maricopa County Bar Association and the Arizona Women Lawyers Association and serves as a District 8 Commissioner for the City of Phoenix Arts and Culture Commission.
Epperson is admitted to practice in Arizona and the U.S. District Court, District of Arizona. She has been honored as a Southwest Super Lawyers Rising Star in 2020 and 2021 in the areas of Estate Planning & Probate, Civil Litigation: Defense, Civil Litigation: Plaintiff, and Business Litigation. In addition, Sarah was listed with the Best Lawyers in America: Ones to Watch in the areas of Litigation – Trust and Estates, Commercial Litigation, and Insurance Law in both 2021 and 2022.
As an experienced litigator, Epperson uses her tenacity, compassion, and creativity to resolve disputes in a holistic manner that best serves her clients’ interests. Sarah takes great pride and enjoyment in crafting efficient and effective solutions and in helping her clients accomplish their goals, particularly at what is often a difficult time in their lives. She looks forward to using her skills and passion to assist Berk Law Group’s valued clients and to enhance its already illustrious practice.
About Berk Law Group, P.C.
Berk Law Group, P.C. is a Scottsdale-based law firm that has helped clients navigate legal issues in a variety of practice areas, including elder law, trust and estate controversies and litigation, guardianships and conservatorships, and probate, trust, and estate administration. The firm’s distinguished attorneys also have substantial experience in other helpful and complimentary areas that are often involved in probate, trust, estate and elder law matters, such as real estate disputes, insurance, and business disputes. For more information or to schedule a consultation, please visit www.berklawgroup.com.Read More
On August 10, 2021, the Court of Appeals issued its decision in In Re Norvelle. The case offers some interesting lessons, although it gives us very little guidance on the issue we have been waiting for the Court to address – what constitutes “actual discovery of the cause of action?” Read our statutes of limitation article for an introduction to statutes of limitation in financial exploitation, abuse and neglect cases.
In Norvelle, Sisters sued their Brother for allegedly financially exploiting their Father. Father had suffered a stroke in 2012. Due to Father’s impairments, Brother moved in with Father to assist him until Father died in 2016. The parties seem to have agreed that Father was a vulnerable adult, entitled to protection of Arizona’s Adult Protective Services Act.
In 2017, Brother’s attorney sent Sisters a letter informing them of the status of the Father’s trust, disclosing that it only held assets worth about $196,000 and that other unidentified assets had been transferred outside of the trust. The value of the trust was substantially less than what Sisters expected.
Sisters were concerned that Brother had taken financial advantage of Father. So, in July 2017, Sister’s attorney sent a letter to Brother’s attorney detailing their concerns and demanding further disclosure of information and documents. Crucially, “Brother’s counsel responded in a letter dated August 24, 2017. It set forth the details of all Father’s assets, including the amounts of each account and insurance policy, and what had been transferred to [Brother] upon Father’s death. Sisters concede that they received this letter, but they did not respond.”
Brother evenly distributed the balance of the trust assets among the beneficiaries, including Sisters. Although it appear that he was not required to do so, Brother also undertook to distribute the assets that he received outside of trust among all of the beneficiaries and made appropriate distributions to most beneficiaries, but stopped making payments to one of them when the Sisters started legal proceedings against him.
Later, in January 2019, after all of the lump sum payments had been made, Sister’s counsel again wrote to Brother’s counsel, “repeating their concerns and demanding an accounting and distribution schedule for Father’s remaining assets.” Brother’s counsel responded that there would be no additional payments since all assets had been distributed.
On July 15, 2019, Sisters filed a “Petition for Leave to File a Financial Exploitation Claim.” Sisters had to request permission to file their complaint for financial exploitation because they did not have automatic standing to do so without the Court’s advance permission. Read more about standing.
On October 8, 2019, the Court granted Sister’s Petition for Leave. They filed their Complaint on December 5, 2019.
Presumably after they conducted some discovery, in September 2020, Brother asked the trial court to summarily dismiss Sister’s Complaint. He argued that it was filed beyond Arizona’s two-year statute of limitation. Although Sisters responded to that motion, they did not oppose Brother’s statement of facts. They also failed to provide any evidence showing that there was a disputed fact requiring trial as to whether they “actually discovered the cause of action” more than two years before they filed their Complaint.
The Trial Court found for Brother and dismissed the case
The trial court agreed with Brother and dismissed the Complaint. The court found that the August 24, 2017 letter from Brother’s counsel started the running of the two-year period. The trial court made two “adjustments” before concluding that the two-year period began running no later than September 1, 2017:
First, the court added mailing time following the date that the August 24, 2017 letter was mailed. As such, the court found that the two year period started running on September 1, 2017.
Second, the trial court “equitably excluded” from the calculation of the period a total of 47 days from July 15, 2019 (when Sisters filed their Petition for Leave) and October 8, 20219 (the date that the court granted that Petition and gave Sisters permission to file their Complaint). The Court of Appeals did not address whether this equitable exclusion was proper, since it was irrelevant to the determination of that case – Sisters’ Complaint was untimely even with the benefit of the additional 47 days.
As such, the court found that the statute of limitation expired on November 25, 2019. However, Sisters did not file their Complaint until December 5, 2019, after the limitation period expired. Therefore, the court dismissed the Sisters’ Complaint. Sisters appealed.
The Court of Appeals Affirmed the Trial Court
First, Sisters argued that there was a disputed question over when Sisters had “actual knowledge” of their claim, such that the court was required to hold a trial. However, at the hearing on summary judgment, the court “expressly asked Sisters’ counsel to confirm that the August 2017 letter was ‘the triggering date for [the] statute because at that point you knew everything you needed to know.'” The Sisters’ attorney agreed.
Given the Sisters’ agreement that they had actual knowledge of their causes of action when they received the August 2017 letter, the trial court concluded that they had “sufficient notice of the basis of their claim not later than August 31, 2017.”
Second, Sisters argued that they initiated their lawsuit by filing their Petition for Leave in July 2019, within the two year period. The trial court and Court of Appeals rejected that argument.
A claim for financial exploitation is asserted through a civil action. A.R.S. §§ 46-455(K) and 46-456(B). In turn, civil actions are governed by the Arizona Rules of Civil Procedure. The Rules provide that Civil actions are initiated by the filing of a complaint with the court.
So, the filing of Sisters’ Petition for Leave did not constitute the initiation of a civil action. The filing date of the Complaint, not the Petition, was the relevant date to determine whether Sisters filed within the two year statute of limitation. Sisters filed their Complaint after the adjusted two year period expired. As such, the Court of Appeals affirmed the trial court and found in favor of Brother.
Unfortunately, the Court of Appeals did not delineate, in general, what information will constitute “actual discovery of the cause of action” to trigger the statute of limitation. The Court just found that the information Sisters received was sufficient to be actual discovery and start the clock running in that case.
The Court also did not identify who must have “actual knowledge” to start the time. Typically, the statute of limitation begins running under the “discovery rule” when the plaintiff knows or with reasonable diligence should have known about the claim. But that can get tricky when dealing with claims on behalf of vulnerable adults. They often do not know that they have been abused, neglected or exploited and certainly do not typically have the ability or resources to hire an attorney to prosecute an action. So, someone else (such as an agent under a power of attorney or conservator) will pursue the action on behalf of the vulnerable adult. Does the statute of limitation for such claims start when the victim (the vulnerable adult) or the person who is bringing the claim on behalf of the vulnerable adult has “actually discovered the cause of action”? We currently do not know the answer to that question. The Arizona Adult Protective Services Act does not specify. The Norvelle Court did not address that issue. Rather, the Court implicitly accepted that it was Sisters’, not Father’s, actual discovery of the cause of action that began the two year period in that case.
In Re Norvelle Takeaways
The Norvelle opinion is a memorandum decision, not a published opinion, so it has limited effect.
But, it still provides some helpful takeaways:
- If you are or you represent the trustee, personal representative or other person being accused of exploitation, providing full disclosure, like Brother, may trigger the running of the limitation period.
- The date of filing a complaint for exploitation, not the date of filing a petition for leave, will likely be the date for the court to determine whether the claim was timely filed.
- However, the court may equitably stop the running of the statute of limitation from the date of filing any petition for leave until the date that the petition is granted.
- If you have a basis to do so, fully respond to any motion and provide a proper list of contested facts and supporting evidence.
- What constitutes “actual discovery of the cause of action” has not been defined.
- The Court has not identified “who” must actually discover the cause of action.
Our Firm is Here to Help
If you have any questions about claims for financial exploitation or abuse/neglect of vulnerable adults in Arizona, including the statutes of limitation, please don’t hesitate to contact us. Our experienced caring attorneys are here to help.Read More
Scottsdale, Arizona probate and elder law attorney Kent S. Berk will present a seminar at the 2021 Arizona Fiduciaries Association Fall Workshop. Kent will co-present Scams & Exploitation of Elderly/Vulnerable Persons with Courtney Bennett from the Arizona Attorney’s General Office.
Topics will include:
- Purposes & Construction of the Adult Protective Services Act
- Who is Protected?
- Who is subject to the Act?
- Standard of Care and Exceptions
- Reporting Obligations
- Other issues, e.g. standing and statute of limitations
AFA Fall Workshop Information
When: October 22, 2021
8:00 AM – 4:00 PM
Location: The High Country Conference Center Flagstaff, 201 W Butler Ave
Flagstaff, AZ 86001; 928-523-9521
Please join Kent and Courtney for an interactive and lively discussion regarding claims and remedies for scams and exploitation of vulnerable adults.Read More
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
- December 31, 2020, Second Renewal of Executive Order 2020-07 The “Good Samaritan” Order
- December 30, 2020, Ensuring Efficient Administration of COVID-19 Vaccine
- December 30, 2020, Drivers License Renewals for Vulnerable Arizonians During COVID-19
- December 2, 2020, Easing Regulations to Encourage Outdoor Dining
- December 2, 2020, Ensuring the Availability of the Vaccine Without Financial Barriers
- November 18, 2020, Enhanced Surveillance Advisory – Monitoring the Administration of COVID-19 Vaccination
- November 11, 2020, Enhanced Surveillance Advisory – Tracking the Spread of COVID-19
- September 8, 2020, Enhanced Surveillance Advisory – Monitoring the Spread of COVID-19
- July 23, 2020, Continuation of Executive Order 2020-43 Slowing the Spread of COVID-19
- July 23, 2020, Arizona: Open for Learning
- July 22, 2020, Protecting the Public’s Right to Vote
- July 16, 2020, Continued Postponement Of Eviction Enforcement Actions
- July 9, 2020, Enhanced Surveillance Advisory
- July 9, 2020, Reducing the Risk, Slowing the Spread Limiting Indoor Dining
- July 1, 2020, Extending The Termination Date Of Programs
- July 1, 2020, Extending The Arizona Complete Count Committee
- June 29, 2020, Protecting Public Health For Students And Teachers
- June 29, 2020, Pausing Of Arizona’s Reopening — Slowing The Spread Of COVID-19
- June 29, 2020, Renewal Of Executive Order 2020-27: The “Good Samaritan” Order
- June 24, 2020, 2020-2021 School Year: Prioritizing Kids And Schools During COVID-19
- June 17, 2020, Containing the Spread of COVID-19 Continuing Arizona Mitigation Efforts
- May 28, 2020, Assisting Arizona Families with Child Care
- May 28, 2020, Ensuring Statewide Access to Care for COVID-19 Arizona Surge Line
- May 21, 2020, Enhanced Surveillance Advisory Continuing to monitor responsiveness to COVID-19
- May 12, 2020, Stay Healthy, Return Smarter, Return Stronger
- May 4, 2020, Reporting By Nursing Care Institutions, Residential Care Institutions, ICF-IIDs and DD Medical Group Homes to Residents and Families Regarding COVID-19
- May 4, 2020, Building on COVID-19 Successes
- April 29, 2020, Return Stronger – Amending the Stay Home, Stay Healthy, Stay Connected Order
- April 22, 20020, Requesting Exemption From Executive Order 2020-10 — Elective Surgeries
- 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, Permitting Remote Online Notarization – as specified in ARS § 41-371 et seq. commencing April 10, 2020
- April 8, 2020, Flexible Food Item & Sale of Goods at Restaurants
- April 8, 2020, Requirements for Individuals Traveling to Arizona
- April 8, 2020, Enhanced Surveillance Advisory
- April 8, 2020, Protection of Vulnerable Residents at Nursing Care Institutions, Residential Care Institutions, ICF-IIDs and DD Medical Group Homes from COVID-19
- April 7, 2020, Prohibiting Small Business Evictions
- April 2, 2020 Expanding Access To Pharmacies
- April 1, 2020 Telemedicine for Pets And Animals
- March 30, 2020, Stay Home, Stay Healthy, Stay Connected – Physical Distancing to Mitigate COVID-19 Transmission
- March 26, 2020, Continuity of Work (among other things, deferring license renewal deadlines and continuing education requirements for certain licensees)
- March 26, 2020, Increasing Hospital Capacity for COVID-19 Preparedness
- March 25, 2020, Expansion of Telemedicine
- March 24, 2020, Postponement of Eviction Actions
- March 23, 20020, Enhanced Surveillance Advisory
- March 23, 2020, Prohibiting the Closure of Essential Services
- March 20, 2020, Ensuring Individuals Whose Employment is Affected by COVID-19 Have Access to Unemployment Insurance
- March 19, 2020, Delaying Elective Surgeries to Conserve Personal Protective Equipment Necessary to Test and Treat Patients with COVID-19
- March 19, 2020, Limiting the Operations of Certain Businesses to Slow the Spread of COVID-19
Arizona Supreme Court Administrative Orders
- December 30, 2020, Order No. 2020-229, Disposition of Residential Eviction Cases Related to the Public Health Emergency (Replacing Administrative Order No. 2020-163)
- December 3, 2020, Order No. 2020-197, Authorizing Limitation of Court Operations During a Public Health Emergency and Transition to Resumption of Certain Operations (Replacing Administrative Order No. 2020-177)
- November 25, 2020, Order No. 2020-182, The Calculation of Time in Attorney Regulation Cases Considering the COVID-19 Emergency and Expedition of Attorney Reinstatements Involving Applicants with No Prior Discipline
- November 18, 2020, Order No. 2020-177, Authorizing Limitation of Court Operations During a Public Health Emergency and Transition to Resumption of Certain Operations (Replacing Administrative Order No. 2020-143)
- November 5, 2020, Order No. 2020-172, Exception To Juror’s Terms Of Service During The COVID-19 Public Health Emergency
- October 14, 2020, Order No. 2020-163, Disposition of Residential Eviction Cases Related to the Public Health Emergency (Replacing Administrative Order No. 2020-159)
- October 7th, 2020, Order No. 2020-160, Return Receipt Signature For Certified or Registered Mail During The COVID-10 Pandemic
- October 7, 2020, Order No. 2020-159, Disposition of Residential Eviction Cases Related To The Public Health Emergency (Replacing Administrative Order No. 2020-151)
- September 23, 2020, Order No. 2020-151, Disposition of Residential Eviction Cases Related to the Public Health Emergency (Replacing Administrative Order No. 2020-147)
- September 23, 2020, Order No. 2020-148, Modifying Court Security Officer Training Requirements Due to a Public Health Emergency (Affecting Administrative Order Nos. 2020-04 & 2020-06)
- September 16, 2020, Order No. 2020-147, Disposition of Residential Eviction Cases Related to the Public Health Emergency (Replacing Administrative Order No. 2020-119)
- August 26, 2020, Order No. 2020-143, Authorizing Limitation of Court Operations During a Public Health Emergency and Transition to Resumption of Certain Operations (Replacing Administrative Order No. 2020-114)
- August 5, 2020, Order No. 2020-129, Authorizing a Modification of Court Rules During a Public Health Emergency
- July 27, 2020, Order No. 2020-120, Authorizing Limitation of Court Operations During a Public Health Emergency and Transition to Resumption of Certain Operations (Amending Administrative Order No. 2020-114)
- July 22, 2020, Order No. 2020-119, Disposition of Residential Eviction Cases Related to the Public Health Emergency (Replacing Administrative Order No. 2020-105)
- July 15, 2020, Order No. 2020-114, Authorizing Limitation of Court Operations During a Public Health Emergency and Transition to Resumption of Certain Operations (Replacing Administrative Order No. 2020-79)
- July 7, 2020, Order No. 2020-105 Disposition of Residential Eviction Cases During the Public Health Emergency
- June 10, 2020, Order No. 2020-87, Authorizing a Modification of Court Rules During a Public Health Emergency (Amending Administrative Order No. 2020-68)
- June 3, 2020, Order No. 2020-83, Authorizing Modification of Sentencing Procedure During a Public Health Emergency
- June 3, 2020, Order No. 2020-82, Establishing Procedures for Online Dispute Resolution During a Public Health Emergency
- May 20, 2020, Order No. 2020-79, Authorizing Limitation of Court Operations During a Public Health Emergency and Transition to Resumption of Certain Operations (Replacing Administrative Order No. 2020-75)
- May 8, 2020, Order No. 2020-75, Authorizing Limitation of Court Operations During a Public Health Emergency and Transition to Resumption of Certain Operations (Replacing Order No. 2020-70)
- 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
- December 3, 2020, Order # 2020-170 In the Matter of Conducting Jury Operations Safely During a Public Health Emergency
- November 20, 2020, Order # 2020-158 In the Matter of Waiving Postage and Handling Fee for the Law Library Resource Center
- November 13, 2020, Order # 2020-155 In The Matter Of Restricting Physical Access To The Intake, Transfer, And Release Facility’s Court Space
- November 5, 2020, Order # 2020-152 In the Matter of Restricting Physical Access to Court Facilities Used by Justice Courts Due to a Public Health Emergency and Transition to Resumption of Certain Operations
- July 30, 2020, Order # 2020-115 In the Matter of Resuming Certain In-Person Proceedings in the Criminal Department
- July 29, 2020, Order # 2020-114 In the Matter of Conducting Jury Operations Safely During A Public Health Emergency
- July 13, 2020, Order # 2020-072 In the Matter of Late Case Fair Limits Proceedings
- July 13, 2020, Order # 2020-071 In the Matter of Establishing a Certified Arbitrator Program
- July 1, 2020, Order # 2020-101 In the Matter of the Transport of Inmates from the Maricopa County Jail to In-Person Court Proceedings
- June 4, 2020, Order # 2020-085 Public Records Terminal Access During a Public Health Emergency
- June 2, 2020, Order # 2020-079 In the Matter of Restricting Physical Access to Court Facilitates Used by Justice Courts Due to a Public Health Emergency and Transition to Resumption of Certain Operations
- May 29, 2020, Order # 2020-078 In the Matter of Restricting Physical Access to Court Facilities Due to a Public Health Emergency and Transition to Resumption of Certain Operations
- May 22, 2020, Order # 2020-077 In the Matter of the Commencement of Jail Pending Self-Surrender Orders
- April 30, 2020, Order # 2020-068 In the Matter of Deferral of Commencement of Jail Sentences for Defendants with Pending Self-Surrender Orders
- April 29, 2020, Order # 2020-067 In the Matter of the Temporary Suspension of State and County Grand Juries
- April 27, 2020, Order # 2020-063 In the Matter of Juvenile Detention Operations and Continuity of Operations
- 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
Maricopa County, Arizona Superior Court Modified Department Operations
NEW: Maricopa County Bar hosts Town Hall Webinars on COVID19 Court Operations
- 4-22-20 Probate and Mental Health Department COVID-19 Operations explained
- 4-16-20 Criminal Department COVID-19 Operations explained
Register for upcoming Town Hall Webinars (links will be posted afterwards if you’re unable to attend)
- 4-23-20 @ 9 AM Juvenile Department COVID-19 Operations explained
- 4-24-20 @ 9 AM Family Department COVID-19 Operations explained
- 4-24-20 @ 12 Noon Civil Department COVID-19 Operations explained
UPDATED 4-14-20 Modified Family Department Operations 602-506-1561
- COVID-19 Parenting Time Guidelines (directrices de régimen de visitas a nivel estatal durante la pandemia del COVID-19)
- Getting an Order of Protection from Superior Court during the Pandemic
- Unemployment Insurance Garnishment for Child Support
UPDATED 4-1-20 Modified Civil Department Operations 602-506-1497 (Phx) 602-506-2021 (Mesa)
- NEW 4-22-20 Public Access to Election Challenge Cases
UPDATED 4-1-20 Modified Lower Court/Administrative Appeals Operations 602-372-5851
UPDATED 4-1-20 Modified Tax Department Operations 602-506-3442
UPDATED 3-31-20 Modified Juvenile Department Operations 602-506-4533 (Phx) 602-506-2544 (Mesa)
Modified Service Operations
Juror Information/Información Para Jurados 602-506-JURY (5879)
Law Library and Resource Center 602-506-7353
Guidance for Reopening
- 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.Read More
Arizona’s Adult Protective Services Act, “APSA” for short, was adopted to expand the rights and claims to remedy abuse, neglect and financial exploitation of Arizona’s large population of vulnerable adults. Arizona courts are required to construe the statute broadly to protect vulnerable adults. You can find a comprehensive discussion of financial exploitation claims here on our website.
In summary, there are four basic requirements to establish a claim for financial exploitation in Arizona pursuant to A.R.S. § 46-456(A):
- A person who is in a position of trust and confidence;
- To a vulnerable or incapacitated adult;
- Uses the vulnerable adult’s property for purposes other than the adult’s sole benefit; and
- There is no applicable exception that permitted the person in a position of trust and confidence to use the funds or other property other than for the vulnerable adult’s sole benefit.
There are many nuances to pursuing claims for financial exploitation. One is the issue of “standing” – who may pursue a claim for financial exploitation? Read on to learn more!
Free to Leave: Interested Persons Pursuit of Financial Exploitation Claims
The Arizona Court of Appeals recently issued an opinion that clearly defines and provides direction to litigants and Arizona trial courts as to the determination of granting leave to interested persons to pursue a financial exploitation claim on behalf of a vulnerable adult or, if the vulnerable adult is deceased, the vulnerable adult’s estate. As a result of the Arizona Court of Appeals’ decision in In re Stephens Trust, — P.3d — (App. 2020), a trial court must grant a petition for leave when the petitioner demonstrates he/she is an interested person and that no one with a higher priority has or is likely to file a claim for financial exploitation on behalf of the vulnerable adult and/or their estate.
Who May Pursue Financial Exploitation Claims
Under A.R.S. § 46-456(G), the vulnerable adult, their conservator, or the personal representative of the vulnerable adults estate each have priority to pursue claims for financial exploitation. However, if “an action [for financial exploitation] is not filed by the vulnerable adult or the duly appointed conservator or personal representative of the vulnerable adult’s estate, any other interested person, as defined in section 14-1201, may petition the court for leave to file an action on behalf of the vulnerable adult or the vulnerable adult’s estate.”
Leave to Pursue Financial Exploitation Claim
One lingering question remained under subsection G of the statute for those desiring to petition a court for leave to pursue a financial exploitation claim – what must “any other interested person” prove in order for a court to grant permission to pursue a financial exploitation claim? The statute is silent on that issue.
In a matter of first impression, this question was addressed by the Arizona Court of Appeals in the recently published Stephens opinion. The appellant, Ms. Sona Heguy, filed a Petition for Leave to File Complaint of Financial Exploitation of a Vulnerable Adult (the “Petition”). Ms. Heguy filed the Petition to pursue a financial exploitation claim on behalf of her father Keith Stephens’ estate. Ms. Heguy was Mr. Stephens’ adult daughter, heir, and only surviving child from his first marriage.
Ms. Heguy attached a draft of the complaint to the Petition and in it, she alleged, among other things: Mr. Stephens suffered a stroke while vacationing abroad in 2011 and never fully physically recovered; Mr. Stephens was placed in a locked memory care unit at a senior living facility in 2013; several changes were subsequently made to a trust that included leaving his then-wife as sole trustee in 2014; and from 2014 through 2016, Mr. Stephens’ wife used trust funds to buy each of her children a home, fund European and Japanese vacations for her children, and pay off debts and other obligations of Ms. Heguy’s daughter.
The Pima County Superior Court denied the Petition. In doing so, the trial court ruled that Ms. Heguy “could not ultimately prevail on her claims” because the allegedly improper transactions were either authorized by Mr. Stephens’ trust or were for the benefit of his marital community and, thus, not actionable under A.R.S. § 46-456(A)(2) and (A)(4).
The Arizona Court of Appeals reversed the trial court’s decision, finding that the trial court’s denial of the Petition based upon the merits of the potential financial exploitation claim, and not whether Ms. Heguy was entitled to leave to pursue the same, was an abuse of discretion.
The Court of Appeals conclusively established the “trial court’s proper role under § 46-456(G)” as follows:
[W]hen leave of court is sought to file a financial exploitation complaint, the court should determine whether the petitioner is an interested person under §§ 46-456(G) and 14-1201. If not, the court may summarily deny the petition…If the petitioner is an interested person under the statute, the court should determine whether another with priority to file an exploitation complaint—“the vulnerable adult or the duly appointed conservator or personal representative of the vulnerable adult’s estate”—has already filed or is likely to file such a complaint. § 46-456(G). If so, the court may summarily deny the petition. The court should not, as the trial court did here, address the merits of the proposed complaint; it should, solely for purposes of granting or denying leave to file the complaint under § 46-456(G), accept the factual allegations of the proposed complaint as true, and without regard to potential defenses.
(Internal citations omitted and emphasis added.)
So, under the simple standard set forth in Stephens, the Court’s role is limited to merely determining whether the petitioner is an “interested person” and, if so, whether anyone with priority has or will file the claim for exploitation.
A.R.S. § 14-1201(33) broadly provides that “’Interested person’ includes any trustee, heir, devisee, child, spouse, creditor, beneficiary, person holding a power of appointment and other person who has a property right in or claim against a trust estate or the estate of a decedent, ward or protected person. Interested person also includes a person who has priority for appointment as personal representative and other fiduciaries representing interested persons. Interested person, as the term relates to particular persons, may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.”
Effect on Litigation of Financial Exploitation Claims
Unfortunately, victims of financial exploitation are often unable to pursue financial exploitation claims on their own behalf as a result of any number of reasons, some which may include their own vulnerable condition, fear of retaliation by the wrongdoer, and/or because they have passed away before they could ever step foot inside of a courthouse. Further, and far too often, the alleged financial exploiter is the person who would otherwise have priority to pursue claims for financial exploitation (e.g., he/she is in a position to be and/or is actually acting as the vulnerable adult’s conservator or estate personal representative). Fortunately, with the Arizona Court of Appeal’s recent opinion in In re Stephenson Trust, vigilant individuals who qualify as “interested persons” now have a clear path to the eventual pursuit of financial exploitation claims on behalf of their loved ones.
If you have any questions about claims for financial exploitation of vulnerable adults in Arizona, please give us a call at 480.607.7900 or contact our office.Read More