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.
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.
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.
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.
Arizona has a large population of vulnerable adults. Arizona adopted the Adult Protective Services Act (“APSA”) in 1980. The Arizona legislature has amended and supplemented APSA several times since.
The goal of APSA is to protect Arizona’s large population of vulnerable adults from abuse, neglect and financial exploitation. In order to further the objective of protecting vulnerable adults, in 2006, Arizona added A.R.S. § 46-459, which provides for the Adult Protective Services Registry.
Pursuant to the law, the Arizona Department of Economic Security (the “Department” or “ADES”) is required to “maintain a registry of substantiated reports of abuse, neglect and exploitation of vulnerable adults made pursuant to § 46-458.” “The registry shall contain the name and date of birth of the person determined to have abused, neglected or exploited a vulnerable adult, the nature of the allegation made and the date and description of the disposition of the allegation. The names of the vulnerable adult and reporting source shall not be reported to the registry.” A.R.S. § 46-459(B). The Department is required to maintain a report in the registry for 25 years. The registry is a public record available on the Department’s website or by written request to the Department.
In order to protect the safety of children and vulnerable adults, the Department is required to conduct a background check on anyone applying to provide direct services to children or vulnerable adults, including to determine whether they are listed on the registry.
APSA provides due process to those accused of abuse, neglect or exploitation who ADES intends to list in the registry. After completing an investigation into abuse, neglect and/or exploitation and finding that the allegations are substantiated, such that ADES intends to enter the incident into the registry, not more than 15 days after completing its investigation, the Department is required to notify the person. The notice must state that “the department intends to enter a substantiated finding of abuse, neglect or exploitation in the registry and of that person’s right: 1. To receive a copy of the report containing the allegation and findings. 2. To a hearing before entry into the registry pursuant to § 46-459.”
Some of the issues that may arise at such a hearing were addressed in a recent Arizona Court of Appeals decision in Soto v. Arizona Department of Economic Security.
Soto v. Arizona Department of Economic Security
In this case, Stephen Soto appealed a superior court’s ruling upholding the ADES decision placing his name on the registry. Under A.R.S. § 12-910(E), a final administrative decision “shall be affirmed” unless the court concludes “the agency’s action is contrary to law, is not supported by substantial evidence, is arbitrary and capricious or is an abuse of discretion.”
The following is from the Court’s decision. Soto lived with and cared for his 81-year-old father, a “vulnerable adult” who suffered from dementia and Parkinson’s disease. After returning home from a long day at work, Soto became frustrated with his father for not listening and having to change two soiled pairs of adult diapers. Soto punched his father’s shoulder to make him “behave,” and hit him on the head with a diaper. A “tussle” ensued when his father tried sitting on the bed and pushed Soto away. Soto then lost it and shoved his father, causing him to fall into a dresser, resulting in a gash on his forehead. Soto was arrested and charged with vulnerable adult abuse and assault under A.R.S. §§13-3623(B)(1) and 1203(A)(1). He later pled guilty to disorderly conduct. A.R.S. §13-2904(A)(1).
Following the incident, Police referred the incident to Adult Protective Services (“APS”), a division of ADES that investigates vulnerable adult abuse, neglect and financial exploitation. After the investigation, APS substantiated a claim of elder abuse, which was upheld by the Administrative Law Judge (“ALJ”) and adopted as the ADES’ final agency decision. Following APS’ claim, Soto’s name was placed on the Adult Protective Services Registry (“Registry”) as follows:
On or about December 22, 2017, STEPHEN CABRERA SOTO (date of birth 07/18/1966) abused a vulnerable adult by intentionally inflicting physical harm on the vulnerable adult. Specifically, while providing care for the vulnerable adult, Mr. Soto punched the vulnerable adult in the back, hit the vulnerable adult on the head with a soiled paper, and pushed the vulnerable adult, causing the vulnerable adult to fall, hit his head on a dresser, and sustain an approximately eight centimeter laceration on his forehead. Such conduct constitutes abuse pursuant to A.R.S. §46-451-(A)(1)(a).
Soto raised several issues in his appeal, arguing that his name should not be listed in the registry.
First, he argued APS improperly relied on hearsay evidence in the administrative proceedings based on the fact that the APS investigator merely “read from various reports,” including police and medical reports, “which were not generated by APS.” Under Arizona Rules of Evidence 801 and 802, hearsay is inadmissible unless an exception applies. Rule 801(c) defines hearsay as
a statement that:
(1) the declarant does not make while testifying at the current trial or hearing and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
Prior precedent, Weisler v. Prins, concluded that “reliable hearsay is admissible in administrative proceedings and may even be the only support for an administrative decision.” 167 Ariz. 223, 227 (App. 1990). Further, “a written statement from the reporting source may be admitted [at the hearing] if the time, content and circumstances of that statement are sufficiently indicative of its reliability.” A.R.S. §46-458(G)(4). So, the court rejected Soto’s first argument because he provided no evidence that doubted the police or medical reports as unreliable.
Second, Soto argued that the evidence did not prove he intended to physically harm his father, which is an element of abuse. Since APSA is a “statutory scheme that protects vulnerable adults,” courts construe it “broadly to effectuate the legislatures purpose.” In the instant case, APSA defines “abuse” as the “intentional infliction of physical harm.” A.R.S. § 46-451(A)(1)(a).
Soto admitted to paramedics and police officers that he had a “rough day” at work, was “getting frustrated,” ultimately “lost it” and “deserved to go to jail.” Soto also knew his father had recently fallen and injured himself. Previously, Soto testified to the ALJ that he pushed his father so he would not slip on feces or soil the bed. The ALJ rejected that version of events.
The court refused to second-guess that credibility determination because the ALJ is the sole arbiter of witness credibility. Mustard v. Indus. Comm’n, 164 Ariz. 320, 321 (App. 1990). In a tort context, “intent” is defined as knowing “the consequences are certain, or substantially certain, to result from his act.” Restatement (Second) of Torts § 8A cmt. b (1965). Therefore, the ALJ could infer from the circumstances that Soto knew his father would fall when pushed. The court held that substantial evidence supported the superior court’s and ADES’ conclusion of abuse.
Adult Protective Services Registry
Finally, Soto claimed that the Registry erroneously stated he committed three acts of abuse:
- Soto punched the vulnerable adult in the back;
- hit the vulnerable adult on the head with a soiled paper; and
- pushed the vulnerable adult.
Rather, Soto believed only the push caused “physical harm” to his father causing a laceration on his forehead. Soto attempted to segregate his movement into three discrete acts as if in slow motion, but these movements occurred in rapid succession, forming an incidence of alleged abuse. Under APSA’s criminal counterpart, A.R.S. § 13-3623(B), the state may allege multiple acts that caused a single result and were part of a single criminal undertaking.
The court rejected Soto’s argument. While the final push may have drawn blood, the movements could not be separated from one another for purposes of alleged elder abuse.
For the all the foregoing reasons, the Court of Appeals affirmed the ADES’ decision.
We are here to help
If you have any questions about abuse, neglect or exploitation of vulnerable adults in Arizona, please give us a call at 480.607.7900 or contact our office.
Hearsay Rule Defined
Under Arizona Rules of Evidence 801 and 802, hearsay is inadmissible unless an exception applies. Rule 801(c) defines hearsay as
a statement that:
(1) the declarant does not make while testifying at the current trial or hearing and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
Although relatively clear, to further define the rule, a “statement” is a “person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.” Ariz. R. Evid. 801(a). A “declarant” is “the person who made the statement.” Ariz. R. Evid. 801(b).
Whether a statement is offered “to prove the truth of the matter asserted” is often misunderstood and has created much confusion. In the context of probate and trust disputes, third-parties often are called testify about what the deceased will maker or trust maker told them. Such testimony is often relevant to resolve ambiguities in the will or trust, or to determine whether the maker had mental capacity to adopt the will, trust, amendment or other governing instrument.
So, let’s say a friend is called to testify about what her deceased friend told her before he died: “You know, I’m really upset. My son Johnny only calls me when he needs money. He doesn’t really care about me. So, after much thought, I’m going to disinherit him and leave my fortune to charity.” If that testimony were offered to prove whether Johnny truly didn’t call his father unless he needed money and didn’t care about his father, then the statements would be for the truth of the matters asserted and would be inadmissible. However, if there is a dispute about the validity of the document disinheriting Johnny, the statements would likely be relevant and admissible to prove dad’s state of mind or intent. This may be a slight oversimplification. But, we think you get the point. Whether something is hearsay depends on the purpose for which the evidence is offered. Also, other rules, such as the so-called “Dead Man’s Statute” may affect the admissibility of evidence in a probate or trust dispute.
Under Arizona Rules of Evidence 801(a) and (b), the rule against hearsay applies to a “person’s” statements and “the person who made the statement.” However, the Rules do not define “person.” So, are computer generated communications hearsay under the Rule? That was the issue addressed in a recent Arizona Court of Appeals case, State v. Stuebe.
Computer Generated Statements and the Hearsay Rules
In Stuebe, the Court had to determine whether a machine that generates information could qualify as a “person” under the Arizona Rules of Evidence. There, Jerry L. Stuebe was convicted of burglary and possession of burglary tools.
Before dawn one morning in February 2018, law enforcement responded to a 911 call from a security company concerning a silent alarm at a mostly vacant commercial property called Zanjero Falls West. Upon arrival, a law enforcement officer saw two individuals running toward an SUV. The officer stopped the vehicle as someone started to drive it away. Stuebe was a passenger in the SUV. Afterwards, officers retraced the SUV’s path and discovered two large bags containing copper wire. The officers also found a two-way radio, bolt cutters, a hacksaw, a flashlight, and other burglary tools. Triggered by a motion detector, a security camera at the property recorded the burglary.
At the commercial property, there was a motion-activated security camera that automatically recorded a video once a sensor was triggered. The system then produced an email and immediately sent it to the property manager. The email only contained the date, time, client ID, serial numbers, camera location code and language that read “Automated message- please do not reply to this address.” At trial, the State attempted to introduce into evidence the automated email and video. Stuebe objected. The Superior Court overruled the objections and admitted the evidence. Stuebe appealed.
Since there is no set definition of “person” in the Rules of Evidence, the Court of Appeals interpreted the word according to its common definition. Arizona’s “Dictionary Act” defines “person” as “a corporation, company, partnership, firm, association or society as well as a natural person.” The definition does not include a computer or other machine. Thus, the Court held that the email and video were not statements by a “person,” but were “machine produced.” They were not made by a person and could not be classified as hearsay. Therefore, the evidence was admissible. Thus, the Court of Appeals affirmed the Superior Court’s decision to admit the evidence.
How Will this Affect Litigation?
While Stuebe was decided in the context of a criminal case, the rules of evidence apply across most areas of the law and may have an effect in litigation involving probate, trusts or estates. Going forward, it will be unlikely machine-produced statements will be deemed inadmissible on a hearsay basis. Rather, concerns about these statements can be addressed through the process of authentication – whether the email or video were altered or otherwise tampered with. If you have any questions about this interesting issue, please let us know.
Photo by Junior Gomes from FreeImages
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.
The past several weeks have tested us all. While the near future remains uncertain, we will surely prevail over our current crisis. We wish you all the best of health, safety, strength and peace during these trying and unprecedented times!As we continue to monitor and adjust to ongoing developments caused by the Coronavirus (COVID-19), nothing will compromise our commitment to keep our employees and clients safe, while still taking care of the matters that our clients trust our firm to handle.
We have plans in place to continue to provide exceptional, uninterrupted service to our existing and potential clients. To keep our team and clients safe, we are handling all new matter consultations and other meetings via teleconference, except where an in-person meeting is absolutely necessary. (We can also make arrangements for video conferences.) Many of our employees are working from home. For those that are still working at the office and rare clients who visit the office, we are following the recommended protocols for social distancing and sanitizing ourselves and the office.
If you have a probate, trust/estate, guardianship, conservatorship, financial exploitation, abuse or neglect or other legal matter in Arizona, please do not hesitate to contact us. We know that in times of uncertainty such as this, it is essential to have sound advice and strong legal assistance. We are here to help!
Although you have probably heard and read plenty regarding the pandemic, we have collected several helpful links to COVID-19 resources, including a video on how to correctly wash your hands. You are probably doing it wrong!
Stay healthy and safe!
The Attorneys and Staff of Berk Law Group, P.C.