Elder Abuse Awareness Archives - Berk Law Group, P.C.

Free to Leave: Interested Persons Pursuit of Financial Exploitation Claims

August 10, 2020 By Salim Shleef

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.

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Arizona’s Adult Protective Services Act Registry

July 31, 2020 By Kent Berk

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.

Hearsay

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.

(Emphasis added.)

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.

Abuse

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.

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Federal Government Enhancing Criminal Prosecution of Nursing Home Abuse

April 19, 2020 By Kent Berk

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.

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SOURCES

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

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

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

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

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

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

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

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

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