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Attorney Sarah E. Epperson Joins Berk Law Group

September 8, 2021 by Leave a Comment

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.

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Court of Appeals gives little guidance in Adult Protective Services Act Statute of Limitation Case

August 28, 2021 by Leave a Comment

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.

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Kent Berk to Present at Arizona Fiduciary Association Fall Workshop

August 25, 2021 by Leave a Comment

Probate Attorney Kent Berk - Berk Law Group, P.C.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
  • Remedies
  • 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

Click for more information and to register.

Please join Kent and Courtney for an interactive and lively discussion regarding claims and remedies for scams and exploitation of vulnerable adults.

Learn more about Kent.  Read about financial exploitation claims in Arizona.

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COVID-19 Resources for Maricopa County, Arizona Attorneys

January 15, 2021 by Leave a Comment

resources-featuredAs 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

Arizona Supreme Court Administrative Orders

Maricopa County, Arizona Superior Court Administrative Orders

Maricopa County, Arizona Superior Court Modified Department Operations 

NEW: Maricopa County Bar hosts Town Hall Webinars on COVID19 Court Operations

Register for upcoming Town Hall Webinars (links will be posted afterwards if you’re unable to attend)

UPDATED 4-1-20 Modified Criminal Department Operations (email Criminal Department) 602-506-8575

UPDATED 4-14-20 Modified Family Department Operations 602-506-1561

UPDATED 4-1-20 Modified Civil Department Operations 602-506-1497 (Phx) 602-506-2021 (Mesa)

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)

UPDATED 3-31-20 Modified Probate Department Operations (email Probate Department) 602-506-3668

UPDATED 3-31-20 Modified Mental Health Department Operations (email Mental Health Department) 602-506-3668

3-31-20 Adult Probation Information and Directory (OFICINAS DEL DEPARTAMENTO DE RÉGIMEN A PRUEBA PARA ADULTOS)

3-31-20 Juvenile Probation Information and Directory (RÉGIMEN A PRUEBA PARA MENORES EN EL CONDADO DE MARICOPA)

Modified Service Operations 

Juror Information/Información Para Jurados 602-506-JURY (5879)

Law Library and Resource Center 602-506-7353

Maricopa County, Arizona Superior Court COVID-19 Information and Updates

National Resources

Guidance for Reopening

Guidance For Barbers And Cosmetologists

Guidance For Restaurants Providing Dine-In Services

Guidance For Retail

Other Resources

 

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.

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Free to Leave: Interested Persons Pursuit of Financial Exploitation Claims

August 10, 2020 by Leave a Comment

Black and white photo of two people holding handsArizona’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):

  1. A person who is in a position of trust and confidence;
  2. To a vulnerable or incapacitated adult;
  3. Uses the vulnerable adult’s property for purposes other than the adult’s sole benefit; and
  4. 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.

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