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.
The death of a loved one is traumatic enough. Disputes over the power to control the disposition of remains in Arizona only adds to the stress. So, what happens when a person dies without leaving clear instructions for cremation or burial of his remains? Who gets to decide?
Ghostley- Decedent’s Remains In Purgatory
In the Matter of the Remains of James David Ghostley, Deceased, No. 2 CA-CV 2018-0197, January 22, 2020, these questions were the topic of a Division Two Arizona Court of Appeals decision.
After their son, Mr. Ghostley, died in 2018, his divorced parents disagreed about the proper disposition of his remains. Father filed a Petition in Pima County probate court to resolve the dispute. A hearing was held. A.R.S. § 32-1365.02(J) authorizes “a court of competent jurisdiction” to resolve disputes between persons listed in § 36-831(A) “concerning the right to control the disposition, including cremation, of a decedent’s remains.”
Testimony from the decedent’s girlfriend and his father indicated that the decedent had expressed his wishes to be cremated and his ashes spread in places he loved. Mother testified that she objected to cremation on religious grounds and, because they were very close, her son would not opt for cremation knowing it would cause his mother emotional torment. Another witness testified to the close relationship decedent had with his mother and that they both practiced the same religion that dictates burial and not cremation.
The Court ruled that decedent “wished to be cremated and that cremation is reasonable and that his wishes do not impose an emotional or economic hardship on any party.” The Court also ordered the cremains to be divided between father and mother. Mother appealed.
In its opinion affirming the probate court, the Court of Appeals looked to the Arizona Revised Statutes (ARS) governing who has the power to direct the disposition of human remains in Arizona. ARS § 36-831 lists the priority of who may act. First is a surviving spouse followed by “a person designated” by power of attorney. Section A.5 names the “dead person’s parents.”
Section D states: “If there is more than one member of a category listed in subsection A, paragraph 3, 4, 5, 6, 7, 8 or 9 of this section entitled to serve as the authorizing agent, final arrangements may be made by any member of that category unless that member knows of any objection by another member of the category. If an objection is known, final arrangements shall be made by a majority of the members of the category who are reasonably available.” In this case, there was no majority.
The Court of Appeals first addressed whether the Court had the power to referee the underlying dispute over whether Mr. Ghostley’s remains should be cremated or buried, or just decide who among those with equal priority should make that decision. The Court of Appeals concluded that various “broad language [in the statute], read in the context of the statutory scheme and the pertinent legislative history, authorizes trial courts to resolve the merits of underlying disputes between litigants of equal statutory standing.” Thus, the Court had the discretion to determine the decedent’s wishes, whether there was a relevant hardship and whether any hardship was sufficient to outweigh the decedent’s wishes.
The Court then looked to ARS § 36-831.01(A) which states: “If the person on whom the duty of burial is imposed pursuant to section 36-831 is aware of the decedent’s wishes regarding the disposition of his remains, that person shall comply with those wishes if they are reasonable and do not impose an economic or emotional hardship.”
Mother argued that the probate Court erred in finding that cremation would not result in “emotional hardship”. Looking at the statute giving priority to “the decedent’s wishes,” the Court found that a party’s distress concerning the disposition of a decedent’s remains “constitutes an emotional hardship only when it is sufficiently weighty to overcome the statutory presumption favoring a decedent’s wishes.” In other words, the decedent’s wishes are given priority. There, the Court of Appeals found that the trial Court did not abuse its discretion in finding that mother’s emotional distress did not outweigh the decedent’s wishes to be cremated.
Finally, mother argued that the probate court erred by not applying the common law right of sepulcher. The “right of sepulcher” dates back hundreds of years in common law. The right of sepulcher is the right to choose and control the burial, cremation, or other final disposition of a human body. The Court here ruled that the Arizona statute directly on point overrode any common-law doctrine to the extent that it varied from that doctrine.
The probate court granted mother’s motion to stay cremation pending resolution of the appeal. That means that the remains of Mr. Ghostley waited for disposition since October 2018. Unfortunately, the absence of any written directive of burial wishes allowed this dispute to continue, surely at substantial economic and emotional expense, for well over a year after Mr. Ghostley died.
Burial authority is frequently contained in a Durable Financial Power of Attorney; a Medical Power of Atorney, Healthcare Directive or a Living Will. Also, many religious organizations have prepared detailed language to include in these documents clearly stating their tenets regarding end of life and disposition of remains.
This case is just one more example of why it is important to hire a qualified estate planning attorney and ensure that you have all of your affairs in order. Berk Law Group handles all types of probate, estate and trust disputes and litigation, including burial and disposition disputes, but does not perform estate planning work. We can recommend various estate planning attorneys if you need a referral.
Learn more about the duties and powers to bury or cremate a decedent in Arizona. If you have any questions about the power to control the disposition of a loved one’s remains in Arizona, please give us a call at 480.607.7900 or contact our office.Read More
Settlement agreements are an often used alternative to lengthy, expensive probate, trust and estate litigation and trial in Arizona. A settlement agreement is typically a binding agreement that usually disposes of the case without further litigation.
Under most circumstances, only parties to the agreement will be bound by the terms of a settlement agreement. This method of resolution may get sticky when the litigation involves the trustee or trustees of a trust and some of the trust beneficiaries, but not all of them. Further issues may arise if the trustees agree to resign and be replaced by a successor trustee and the successor trustee is purportedly bound by the agreement. In those situations, further disputes and further litigation may arise over the enforceability and scope of the settlement agreement under Arizona law.
These issues were address in Matter of Book, a recent Arizona Court of Appeals decision. There, a settlement agreement that released the original co-trustees individually, personally, and in their fiduciary capacities was held to be unenforceable against the new trustees because the terms of the agreement were deemed antagonistic towards the interests of the contingent beneficiaries of the trust who were not parties to the settlement agreement.
The person who established the trust (called the trustor) designated $2.1 million to be paid to four specific beneficiaries (the “primary beneficiaries”) in specific cash gifts within thirty days after the trustor’s death. The remaining assets of the trust were to be distributed to two universities (the “contingent beneficiaries”) in designated percentages.
After the trustor’s death, two trustees assumed control of the administration of the trust. They failed to distribute the four specific gifts to the primary beneficiaries within the thirty-day deadline and allegedly engaged in other wrongdoing. Two of the four primary beneficiaries filed a complaint against the co-trustees for breach of fiduciary duty, seeking removal of the co-trustees and an award of damages. A third primary beneficiary intervened during the litigation. While the fourth did not participate, he signed the settlement agreement once it had been reduced to writing. However, the contingent beneficiaries did not participate in the litigation or sign the settlement agreement, although they appeared through counsel during negotiations.
The terms of the settlement agreement provided that mutual releases were given by the beneficiaries of the trust, that claims against the original co-trustees were released in their individual, personal, and fiduciary capacities, and that the agreement settled “all claims known an unknown, liquidated and unliquidated, foreseen and unforeseen that would in any way arise out of the claims and disputes that have been asserted in [the litigation].” Further, the co-trustees agreed to resign and be replaced by successor trustees. Effectively, the settlement agreement purported to release the original trustees from any liability in any of their capacities and precluded claims against them by the successor trustees under the prior litigation or that could be brought in the future pertaining to the co-trustees’ breach of fiduciary duties.
The Court found that, while the settlement agreement acknowledged that the contingent beneficiaries were not parties to the agreement and were not bound by it, the agreement itself was antagonistic towards the interests of the contingent beneficiaries because the agreement purported to release and discharge all claims against the original trustees. The contingent beneficiaries maintained an interest in the trust property as they still had a remainder interest after the four specific cash gifts were distributed. Since the contingent beneficiaries were not parties to the settlement agreement, they did not release the original co-trustees from liability for the purported breach of fiduciary duties. As such, the Court found that the settlement agreement could not preclude the new trustees, on behalf of the contingent beneficiaries, from bringing a new action against the original co-trustees for breach of their duties.
In doing so, the Court rejected the original trustees’ argument that they could insulate themselves from liability by entering into the settlement agreement on behalf of the contingent beneficiaries under A.R.S. § 14-1406. Basically, that statute permits a trustee to represent and bind the beneficiaries of a trust, but only “to the extent there is no material conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute.” (Emphasis added.) The Court found that the attempt to release and cancel any claims that could be brought by or on behalf of the contingent beneficiaries was against public policy and, therefore, unenforceable and void.
Pursuant to Arizona’s trust law, trustees have various duties. For example, under A.R.S. § 14-10802(A), a trustee is required to “administer the trust solely in the interests of the beneficiaries.” Pursuant to A.R.S. § 14-108011, the trustee must “take reasonable steps to enforce claims of the trust.” The new trustees were required to fulfill those trustee duties like any other trustee in Arizona. The Court reasoned that, since the original trustees breached their duties, resigned, and were replaced by the successor trustees, the successor trustees could not be foreclosed by the settlement agreement from bringing claims on the contingent beneficiaries’ behalf. Such a foreclosure would be a violation of legislation and public policy.
Thus, the Court held that the settlement agreement could not be applied to prevent the successor trustees from bringing new litigation against the original trustees on behalf of the contingent beneficiaries. Because the settlement agreement at issue did not include a severability provision (a provision that the remainder of the agreement would be enforceable even if part was not), the entire agreement was unenforceable. So, the Court “unwound” the entire settlement.
If you have a question regarding settlement agreements in a probate matter or this recent Court of Appeals decision, or need help administering an estate or trust, please contact us.Read More
Under Arizona law, at the time of appointment, the personal representative of an estate must provide notice to creditors, known and unknown. For unknown creditors, the personal representative must publish a notice to creditors in a newspaper of general circulation in the county where the decedent lived. For known creditors, the personal representative must give notice by mail or other delivery.
Creditors of the estate then have four months after publication or sixty days after the mailing or other delivery of the notice, whichever is later, to present their claims. A.R.S. § 14-3801. Claims may then be allowed or disallowed by the estate. If disallowed, the creditor can then file a lawsuit to have the Court determine the validity of the claim.
Absent a judgment in another court providing otherwise, “allowed claims bear interest at the legal rate for the period commencing sixty days after the time for original presentation of the claim has expired…” A.R.S. § 14-3806(E). That provision does not differentiate between claims for definite and indefinite amounts. Thus, the probate code is inconsistent with Arizona’s general rule that “prejudgment interest is generally not awardable on unliquidated claims.” Metzler v. BCI Coca-Cola Bottling Co. The Arizona Court of Appeals has now tackled this inconsistency and held that all allowed claims against an estate bear interest.
A liquidated claim is a claim for a sum certain, like the balance due on a promissory note. On the other hand, an unliquidated claim is one that is not for a sum certain, like a claim for emotional distress or pain and suffering.
In its recent decision in Estate of Chalker, the Arizona Court of Appeals held that the Arizona probate code mandates interest on all allowed creditor claims, even if for an unliquidated sum. In this case, the Petitioners were attorneys who represented the decedent in a divorce action in 1994. The decedent owed Petitioners approximately $273,000 in fees and costs. In 1999, Petitioners and decedent entered into a new fee agreement that entitled Petitioners to be paid 50 percent of the decedent’s Fidelity Investment accounts once the accounts were recovered by the estate.
Upon decedent’s passing and the personal representative providing notice, Petitioners filed a timely claim against the Estate. Ultimately, the superior court decided that the 1999 fee agreement did not entitle Petitioners to 50 percent of the Fidelity Investment accounts that were recovered. The superior court held that Petitioners were only entitled to an award in quantum meruit for the fair value of services rendered, but that no interest was to be paid on those awards. Thus, the Court allowed the claim, but refused to add interest on the amount due. Petitioners appealed the ruling.
In reversing the superior court’s decision to deny interest on the amount due, the Court of Appeals, citing A.R.S. § 14-3806(E), reasoned that the plain language of the statute required that allowed claims bear interest. The Court agreed with the Petitioner’s argument that, because the superior court ultimately awarded Petitioner’s fees in quantum meruit (the claim was allowed), the claim must be “paid in the same manner as presently due and absolute claims of the same class” by “bear[ing] interest at the legal rate.”
The Court further reasoned that the statute does not differentiate between liquidated or unliquidated claims. Thus, while the Court acknowledged Arizona’s general rule that is inconsistent with awarding prejudgment interest on unliquidated claims, the Court held that it must apply the given statutory language in the Arizona probate code. As a result of this decision, all allowed creditor claims, whether liquidated or unliquidated, bear interest.
If you have a question about creditors claims in an Arizona probate matter or this recent Court of Appeals decision, or need help administering an estate, please contact us.Read More