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

Kent Berk to Teach Financial Exploitation Seminar

Share Button

Video thumbnail for video Real Estate Litigation Attorneys | Scottsdale, AZScottsdale, Arizona probate attorney Kent S. Berk will teach a seminar regarding financial exploitation claims under Arizona’s adult protective service act.  The seminar will be held at the Maricopa County Bar Association in Phoenix, Arizona.

Please join Kent for an interactive session to discuss:

  • Purposes & Construction of the Adult Protective Services Act
  • Who is Protected
  • Who is subject to the Act
  • Standard of Care and Exceptions
  • Remedies
  • Reporting Obligations
  • Other issues, e.g. standing and statute of limitations

When:

Thursday October 13, 2016
7:30 AM – 9:00 AM

Where:

Maricopa County Bar Association
303 E. Palm Lane
Phoenix, Arizona 85004

Reservations are required.  Call (602) 257-4200 or register online.

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

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

Kent Berk to be Interviewed on Money Radio

Share Button

Join Kent for a discussion regarding elder law on Friday, January 29, 2016 from noon to 1:00 PM on Money Radio 1510 AM or 99.3 FM.  The show can be heard live on www.moneyradio1510.com.  Kent will discuss claims and remedies for financial exploitation of vulnerable adults under Arizona’s Adult Protective Services Act, including:

  • Purposes & Construction of the Act.
  • Who is protected?
  • Who is subject to the Act?
  • What are the requirements of the Act?
  • What are the remedies?
  • Other issues.

Mark your calendars for this informative broadcast.

Share Button