martindale Avvo Rating  Berk Law Group, P.C. Super Lawyers | Kent S. Berk | Berk & Moskowitz, P.C.

Arizona Supreme Court Reverses Itself – Makes Elder Abuse Claims Easier

Share Button
Vulnerable Adult Litigation

Elder Law

Elder financial exploitation, abuse, neglect are growing concerns in society today, with baby boomers reaching an advanced age and requiring more medical care and financial assistance.  According to the National Council on Aging, “approximately 1 in 10 Americans aged 60+ have experienced some form of elder abuse. Some estimates range as high as 5 million elders who are abused each year. One study estimated that only 1 in 14 cases of abuse are reported to authorities.”  Elder abuse, neglect and financial exploitation are obviously huge problems.

Arizona enacted the Adult Protective Services Act (APSA) in 1988 to provide broad remedies to protect victims of elder abuse, neglect and financial exploitation.  APSA does not only protect the elderly; the statute provides protection for any “vulnerable adult.” A vulnerable adult is any person, age 18 or older, who cannot protect him- or herself from “abuse, neglect or exploitation by others because of a physical or mental impairment.”  APSA also provides for enterprise liability, meaning that the facility where the abuse occurs may also be held liable.  Learn more about elder law claims.

In 2002, the Arizona Supreme Court decided the case of the Estate of McGill v. Albrecht to determine under what circumstances victims of elder abuse and neglect (or their estates) can recover under APSA.  There, Norma McGill had an extended history of psychiatric illness and had been placed in various behavioral health facilities for about 30 years.  Norma died at age 64.  Her death certificate showed that she died from, among other things, neurotoxicity secondary to medications – in other words, she overdosed.  Her estate and family brought APSA and other claims against various of Norma’s providers.  The trial court judge dismissed the APSA claim, finding that it “was based on Defendants’ malpractice in caring for Ms. McGill and that something more than malpractice must be shown to establish an APSA claim.”

In its ruling, the Supreme Court held that, for abuse to be actionable under APSA, the act(s) must have: (1) arisen from the relationship of recipient and caregiver, (2) been closely connected to that recipient and caregiver relationship, (3) been linked to the service provided by the caregiver due to the recipient’s incapacity, and (4) been related to the problem(s) that caused the person’s incapacity.  This ruling did not supply a broad remedy of recovery that the legislature intended in adopting APSA; rather, it strictly narrowed the circumstances under which a victim could recover under APSA.  This ruling made it more difficult, if not impossible in some instances, for victims to pursue claims under APSA, rendering the purpose of the Act (to supply broad remedies) almost meaningless.  In its decision, the Court noted the difficulty in applying its formula: “we are well aware that this formulation does not provide an easy, bright-line test for judges and juries. But we believe it best serves the purposes of the legislation and addresses the problems the legislature sought to correct.”

However, in June 2017, the Arizona Supreme Court made a surprising ruling in Delgado v. Manor Care of Tucson AZ, LLC when it reversed its prior decision in Estate of McGill.

Delgado arose from the death of Sandra Shaw.  At the time, she was a patient at a skilled nursing facility in Tucson and had several serious medical conditions, such as kidney disease, anemia, heart disease and hypertension.  She had recently undergone surgery for a brain tumor.  She needed to use a wheelchair and needed assistance with basic tasks, like walking, bathing, dressing and others.  She was obviously a vulnerable adult as defined in APSA.  Her condition briefly improved at the nursing facility, but it eventually declined and she died of sepsis – a serious infection usually contracted through a wound.

Sandra’s sister and estate brought various claims, including for abuse and neglect under APSA, against the nursing facility, Sandra’s doctor and others.  The trial court applied the McGill four-part test and dismissed the APSA claims, finding that the fourth element was not satisfied because the cause of Sandra’s death, sepsis, “was not related to the conditions that  caused her incapacity.”

In overruling the trial court and reversing its own decision under McGill, the Delgado Court held that, for a claim to be actionable under APSA, it simply requires that a vulnerable adult suffer an injury caused by abuse or neglect from a caregiver.  This ruling is the exact broad remedy originally intended under APSA, allowing a vulnerable adult to file a claim against an abusive caregiver without having to meet other requirements that were needlessly imposed by the Court in McGill.  Now, the standard for victims of abuse or neglect (or their estates) to file a claim under APSA simply requires that the vulnerable adult was abused or neglected by a caregiver.  This decision conforms to public policy, allowing victims and their estates an easier way to seek remedies under APSA.

If you or a loved one are the victim of vulnerable adult abuse, neglect or financial exploitation please contact us to schedule a consultation with one of our experienced attorneys.

Share Button

Keeping a Healthy Brain

Share Button

Brain HealthMost people are concerned about keeping their brains healthy and active as they age. With high anticipated rates of Alzheimer’s disease and dementia projected for the future, this should be important for everyone. Indeed, the Alzheimer’s Association reports that 1 in 3 seniors will die with Alzheimer’s or another form of dementia. To learn more about Alzheimer’s and dementia, read our article about Dementia and Alzheimer’s Disease in Arizona Will and Trust Contests. So, what exactly can we do to keep our minds in top shape?

Research regarding brain health has come a long way. Before getting to the current recommendations, here are some tips, published over 400 years ago in 1596, to keep your brain healthy from author A.T., written in his book A Rich Store-House or Treasury for the Diseased:

  • Eat sage, but not too much
  • Keep the head warm
  • Wash your hands often
  • Smell red roses
  • Wash your temples with rose water
  • Drink wine, measurably, and
  • Listen to little music

[Read more…]

Share Button

2016 Arizona Probate and Elder Law Legislation Updates

Share Button

AZ houseDuring the 2016 State of Arizona Fifty-second Legislature Second Regular Session, the House of Representatives has proposed three bills and the Senate has proposed one bill with proposed amendments to Arizona’s elder laws.  The proposed revisions involve powers of attorney, claims for financial exploitation under Arizona’s Adult Protective Services Act, A.R.S. 46-451 etc. and guardianships.

Powers of Attorney

A.R.S. § 14-5501 sets forth, among other things, the requirements to create a valid durable power of attorney in Arizona.  Basically, a “durable” power of attorney is one that either (a) stays in effect notwithstanding that the principal (the one granting the power) becomes incapacitated or disabled or (b) becomes effective when and if the principal becomes incapacitated or disabled.

Pursuant to A.R.S. § 14-5501(B), the intent to create a durable power of attorney may be expressed by the following or similar language in the power of attorney: [Read more…]

Share Button

Attorney Kent Berk Featured on Money Radio 1510

Share Button

Scottsdale Money Radio | Kent BerkLast week one of our very own was featured on Money Radio 1510AM – Phoenix to discuss several topics, including elder abuse and financial exploitation.

Click here to listen to the full interview.

[Read more…]

Share Button

Sadomasochistic Relationship Leads to Exploitation Claims

Share Button

What do sex, sadomasochism and financial exploitation have to do with each other?  This is not a joke!  Read more and find out.

In a recent Florida lawsuit, 68-year-old Alex Abrams claims that his sadomasochistic relationship with Judith Gumbrecht, also known as “Goddess Jude,” Goddess Judeallowed her to financially exploit him.  The allegations set forth in the lawsuit against Goddess Jude are intriguing and troubling, perhaps revealing a new method of financial exploitation of the elderly.

The Allegations

In 2011, Alex Abrams, then 63-years-old, divorced his wife of 32 years and was living alone. During this time, Abrams’ lawyers claim that he was suffering from severe clinical depression, an unspecified dementia condition and Alzheimer’s disease.  Abrams also had a history of ADHD and anxiety.  Because of Abrams’ age, medical and mental disabilities, his lawyers argue that Goddess Jude used their sadomasochistic relationship, which began in 2011 after Abrams’ divorce, for the purpose of financially exploiting Abrams.

According to the complaint filed against Gumbrecht in July 2015, she advised Abrams that it was “of the highest honor to be her financial slave.”  As a result, Abrams opened a new joint financial account with Gumbrecht, as well as made her an authorized user on Abrams’ credit card accounts.  Gumbrecht rewarded Abrams for these financial changes with sexual favors, but also threatened to punish him if he did not adhere to her financial instructions and requirements.

As a result of Gumbrecht’s control, Abrams claims that he transferred his Florida home to her via a Warranty Deed.  Gumbrecht also took more than $500,000 of Abrams’ money from his bank and credit card accounts.  Abrams’ attorneys claim that Gumbrecht was well aware of Abrams’ medical and mental health issues, as she attended a doctor’s appointment in which he was diagnosed with Alzheimer’s disease.  Abrams alleges that in violation of Florida Statute §825.103, Gumbrecht exploited Abrams by using her relationship with Abrams to create a relationship of trust and confidence in order to knowingly obtain or use his funds, assets, or property for her benefit.

Much like Arizona’s financial exploitation statute, Florida law defines exploitation as, among other things, “knowingly obtaining or using, or endeavoring to obtain or use, an elderly person’s or disabled adult’s funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who:  1.  Stands in a position of trust and confidence with the elderly person or disabled adult; or 2.  Has a business relationship with the elderly person or disabled adult.”

In May of 2015, Abrams formally demanded that Gumbrecht promptly return his property or pay for the full value of his property, funds and assets.  Gumbrecht apparently denied this request and, instead, threatened to expose their relationship to his children.

According to Court documents, using her status as a dominatrix, Goddess Jude was able to exploit submissive Alex Abrams, receiving his home and over $500,000.  While a lawyer for Abrams did state that Gumbrecht’s advertisement of “financial slavery” was within the bounds of legality, she went too far by exploiting the elderly man due to his mental and physical condition.

Berk Law Group is Here to Help

Typically, financial exploitation of elderly or disabled adults is committed by a family member, friend or caregiver.  However, a business relationship, such as the sadomasochistic relationship between Abrams and Gumbrecht, can also lead to financial exploitation.  If you believe you or a loved one may be a victim of financial exploitation, or would like to learn more about financial exploitation and elder abuse claims in Arizona, please contact us.

Share Button

Elder Abuse Is Everyone’s Concern

Share Button

Berk4Abuse of the most vulnerable of society is a concern for everyone. And when an elderly loved one is the victim, you may be left confused about the steps you should take to extract the elder from the abusive situation and make sure that he or she is left whole after the experience. Although elder law litigation may sound like an extreme measure, in some situations it is the correct response.

Elderly people of every gender, race and net worth experience abuse. Typically, the abuse is at the hands of someone the elder trusted most, so much of the abuse happens without detection. Family members and other caregivers can be the most frequent perpetrators of elder abuse. Elder abuse can take the form of physical abuse, financial abuse, neglect, abandonment, isolation or even abduction. Any time an elderly person suffers, whether physically or mentally, elder abuse is a real possibility. [Read more…]

Share Button

Nursing Home Abuse Warning Signs

Share Button

Berk Law Group, P.C. Announcement

Berk2The unfortunate truth is that the nursing facilities that are supposed to serve and protect some of the most vulnerable members of society are sometimes the perpetrators of that abuse. Sometimes profit motive drives the abuse: short staffing and resulting infrequent contact with residents can leave the elderly just as physically and psychologically damaged as perpetrators who intentionally harm them. Intentional physical abuse is seldom merely the result of a single bad actor abusing a resident; systemic problems at a home may contribute to the abuse and neglect suffered by residents.

[Read more…]

Share Button

Rising Elder Abuse in Arizona

Share Button

Elderly in ArizonaThe numbers of elder abuse cases in Arizona are increasing as the state’s retired population grows. Scams targeting the elderly may be the focus of news reports, but the reality of the situation is even sadder. The elderly are reportedly most often the victims of fraud perpetuated by family members, not strangers.

Unscrupulous family members may manipulate an older person to change their will to cut out other loved ones. Or a family member, or other caregiver, named as agent in a durable power of attorney may use his or her power to steal from the elderly person, leaving them financially and emotionally destitute.

According to Arizona Adult Protective Services (APS), for the fiscal year that ended June 30, 2013, APS received a total of over 11,000 – an all-time high –  reports of abuse, neglect or exploitation of vulnerable adults in Arizona.  Of those, over 3,100 involved financial exploitation – the theft or misappropriation of the vulnerable adult’s money or other assets to uses not solely for the benefit of the adult.  Family members were reported as the alleged perpetrators in about 34% of Arizona elder abuse cases.

Why do family members defraud their elderly relatives? This kind of behavior is typically motivated by greed.   “They feel entitled,” according to Angel Guzman, with Adult Protective Services.  But accelerating your inheritance isn’t just in bad taste: it’s illegal and can result in both criminal charges and elder law litigation, with substantial penalties. [Read more…]

Share Button

Casey Kasem – Fame No Insulation From Elder Law Struggles

Share Button

Casey Kasem Elder Law | Arizona Elder Abuse Lawyer | Berk & Moskowitz, PC

Casey Kasem is the well-known host of the nationally syndicated countdown show “American Top 40” and for voicing Shaggy in the Saturday morning cartoon franchise “Scooby-Doo.” The iconic disc jockey recently passed away at the age of 82.

Preceding his passing, Mr. Kasem’s family had been in and out of Los Angeles courts, bitterly trying to win conservatorship, assert decision-making rights on his behalf, and ultimately, to ask the court to allow Mr. Kasem to be removed from artificial hydration and feeding.

The public became aware of the acrimony in May when Mr. Kasem temporarily dropped out of sight before finally being found in the state of Washington. Mr. Kasem was living with the advanced stages of Parkinson’s disease, a degenerative disorder affecting the central nervous system.

Mr. Kasem’s eldest daughter from his first marriage, Kerri Kasem, requested and was granted temporary conservatorship from a California Superior Court Judge. The status of her father’s health, finances, and potential elder abuse were the basis for granting conservatorship, according to this news article. The hearing revealed a shocking fact—the people left in charge of Mr. Kasem’s safety and welfare claimed to be unsure of his whereabouts.

At the time of the May hearing, there were conflicting reports about whether Mr. Kasem was being deliberately kept away from some of his family, or whether he may be in a location unknown to everyone. Since that time, it has been alleged that Mr. Kasem’s wife, Jean, purposefully removed him from his feeding tube while in nursing care and moved him to Washington in order to evade Kerri and her siblings. Kerri Kasem reportedly will file elder abuse charges based on this and other actions taken by Jean. [Read more…]

Share Button

Mickey Rooney’s Family Accused of Elder Abuse, in Court Following Actor’s Death

Share Button

Mickey Rooney Estate Drama | Probate Litigation Attorney | Scottsdale, AZ | Berk & Moskowitz, PCTo a certain generation, Mickey Rooney evokes memories of Hollywood’s golden years, where going to the movies was a happy, music-filled, and glamorous experience. Classic film fans mourned the loss of an icon after hearing news of Rooney’s passing on April 6, 2014.

Quickly following on the heels of this tragic news, however, was word that Rooney’s extended family was openly feuding about everything from who would claim his body to who should lay claim to his somewhat meager estate. News of his final years also included stories of possible elder abuse by those same relatives.

The years before his death seem to have foreshadowed his final decline. Since 2011, he had fought legal and personal battles, struggling to maintain his dignity.  In that year, Rooney and his attorneys filed a financial elder abuse lawsuit against Chris Aber, his wife’s son from a previous marriage, and Aber’s wife. The lawsuit accused the Abers of robbing Rooney of millions of dollars and of elder abuse. [Read more…]

Share Button