Financial exploitation of vulnerable adults is, unfortunately, all too common in Arizona and elsewhere. Elders desire and deserve companionship and attention. They often need care and assistance.
Sadly, when vulnerable or disabled adults need help the most, they are sometimes financially exploited or abused/neglected. Theft is often committed by the very people who are supposed to be caring for them, such as family members, professional caregivers, nursing home or assisted living staff or other assistants.
Fortunately, Arizona has strong protections and remedies to deal with this unfortunate situation: Arizona’s Adult Protective Services Act. Or, “APSA” for short. APSA was adopted to expand the rights and claims to remedy financial exploitation of Arizona’s large population of vulnerable adults. As such, Arizona courts are required to construe the statute broadly to protect vulnerable adults. Read on and watch our videos below to learn more. And, be aware of these warning signs of financial exploitation.
Claims for Financial Exploitation of Vulnerable Adults under Arizona Law
Financial exploitation of vulnerable adults can take many forms. Here are some examples:
- Excessive “gifts” that are inconsistent with a history of gift-giving
- Forged checks
- Large ATM or cash withdrawals
- Large credit card charges
- Excessive expenses, such as for caregivers, nurses, landscapers, house cleaners, drivers or other vendors
- Change of title to vehicles
- Changes to signers on financial accounts – checking, savings, investment
- Change of title to homes and/or other real estate
You’ve heard the story all too often. Family, friends, and caregivers help themselves to the vulnerable adult’s money, property, or other assets–sometimes leaving the vulnerable adult with insufficient property for his/her own support. Arizona law provides a remedy for those unfortunate situations.
There are four requirements to prove a claim for financial exploitation under Arizona law:
- A person who is in a position of trust and confidence (the “fiduciary”);
- 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 fiduciary to use the funds or other property other than for the vulnerable adult’s sole benefit.
Below, we’ll break that down and address each element in more detail. Then, we will address the real teeth in APSA: damages and remedies, as well as some other issues and considerations.
Position of Trust and Confidence
For purposes of a claim for financial exploitation in Arizona, a person is deemed to be acting in a position of trust and confidence to a vulnerable adult in numerous situations, including:
- A person assumed a duty to provide care to the adult;
- A joint tenant or a tenant in common with the adult (someone who owns property with the adult);
- A fiduciary to the vulnerable adult, such as an agent under a power of attorney, financial advisor, attorney, accountant or other professional;
- Someone who is appointed or acting (even without court appointment) as guardian or conservator for the adult;
- Someone who is otherwise in a confidential relationship with the adult based on the totality of the circumstances (such as someone who is caring for the adult or managing the adult’s financial affairs); or
- A beneficiary of the adult in a governing instrument, such as a will, trust or a deed.
However, certain individuals who otherwise act in a position of trust and confidence are expressly not subject to liability for financial exploitation under APSA. The act does not apply to an agent who is acting within the scope of the person’s duties as, or on behalf of, any of the following:
- A bank, financial institution or escrow agent licensed or certified pursuant to title 6.
- A securities dealer or salesman registered pursuant to title 44, chapter 12, article 9.
- An insurer, including a title insurer, authorized and regulated pursuant to title 20.
- A health care institution licensed pursuant to title 36, chapter 4 that provides services to the vulnerable adult.
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Vulnerable or Incapacitated Adult
A “vulnerable adult” is someone who is 18 years of age or older who is unable to protect himself or herself from abuse, neglect or exploitation by others because of a physical or mental impairment. A physical and mental impairment is not required. Either will suffice so long as the impairment is significant enough that the person cannot protect him or herself from financial exploitation. The Arizona Courts have found that even minimal impairments are sufficient to render someone vulnerable.
An incapacitated adult also qualifies for protection under the statute. An incapacitated adult is someone who is impaired by reason of:
- mental illness, mental deficiency, mental disorder
- physical illness or disability
- chronic use of drugs, chronic intoxication or
- other cause, except minority (a child)
to the extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.
Use Solely for the Benefit of the Vulnerable or Incapacitated Adult
APSA essentially provides for strict liability. If a person is acting in a position of trust and confidence to a vulnerable adult, the person must “use the vulnerable adult’s assets solely for the benefit of the vulnerable adult and not for the benefit of the person who is in the position of trust and confidence to the vulnerable adult or the person’s relatives,” unless an exception applies. A.R.S. § 46-456(A).
Because a person who is acting in a position of trust and confidence to a vulnerable adult will typically be deemed a fiduciary to the vulnerable adult, the person will generally be required to prove how he/she used the adult’s property (to account). If the fiduciary is unable to account, Arizona courts have presumed that the property was not used for the benefit of the vulnerable adult and found the fiduciary liable for financial exploitation.
Watch our videos below to learn more about Arizona financial exploitation claims.
Exceptions
Arizona’s Adult Protective Services Act includes various exceptions. A person acting in a position of trust and confidence to a vulnerable adult may use the adult’s property other than for the sole benefit of the vulnerable adult where:
- The Arizona Superior Court gives prior approval, finding that the transaction is for the benefit of the vulnerable adult
- The transaction is specifically authorized by the adult in a valid durable power of attorney or a valid trust
- The transaction is required in order to obtain or maintain eligibility for Arizona’s Medicaid, “AHCCCS”
- The person in the position of trust to the vulnerable adult is the adult’s spouse and the transaction furthers the interest of the marital community, including applying for Arizona long-term care benefits, supplemental security income, Medicare or veterans’ administration programs
- The action is consistent with the clearly stated wishes of the vulnerable adult found by the court to be made without coercion and while the vulnerable adult was of sound mind
- The property is given as a gift, which is consistent with a pattern of gifting before the adult became vulnerable
Damages and Other Remedies for Financial Exploitation of Vulnerable Adults under Arizona Law
If a person is acting in a position of trust and confidence to a vulnerable adult and uses the adult’s property in violation of the Act, there are potentially strong remedies and severe penalties.
First, anyone found liable for financial exploitation is obligated to pay “actual damages and reasonable costs and attorney fees in a civil action brought by or on behalf of a vulnerable adult.” A.R.S. § 46-456(B). Typically, actual damages will be the amount of funds or value of the property improperly taken from the vulnerable adult.
Now for the real kicker! In addition to actual damages, costs and attorneys’ fees, the Court has the discretion to implement additional remedies, such as the following:
- additional damages in an amount up to twice the amount of the actual damages
- Actual (pain and suffering) and consequential damages
- Punitive damages
- Forfeit or revoke all or a portion of the fiduciary’s
a. Interest in any governing instrument
b. Intestate share and elections
c. Interest in any enterprise
- Sever joint tenancy property
- Various others, including provisional remedies
Other Issues and Considerations
A claim for financial exploitation under APSA is not the only cause of action that may be available under Arizona law when someone takes advantage of a vulnerable adult. For example, the vulnerable adult or someone acting on behalf of the adult or the adult’s estate may also be able to pursue claims for conversion (civil theft), unjust enrichment, breach of fiduciary duty or accounting.
Pursuant to APSA, only the vulnerable adult, court-appointed conservator or court-appointed personal representative may file a claim for financial exploitation on behalf of the vulnerable adult or adult’s estate. If any of those individuals do not file a claim, any other interested person may file such a claim if he/she obtains permission from the superior court.
Most claims based on statute in Arizona must be filed within a one year statute of limitation. However, claims for financial exploitation have a two year statute of limitation. When the time begins to run is often complicated and depends on the specific circumstances of the case. Read more about statutes of limitation.
This is just a brief overview of claims for financial exploitation of vulnerable adults in Arizona.
Do you want to learn more about Arizona financial exploitation claims? Watch our following videos or download our 3-Part Video Webinar!
Financial Exploitation Claims Webinar
Here to Help Resolve Claims for Financial Exploitation of Vulnerable Adults in Arizona
If you or a loved one believes that there has been financial exploitation or you have been accused of exploitation or need assistance in a guardianship or conservatorship in Arizona, please call 480.607.7900 or contact us. We have helped many people successfully resolve virtually all types of claims involving the financial exploitation or abuse/neglect of vulnerable adults.
When Your Loved One Simply Needs Financial or other Assistance with His/Her Affairs
In many situations, the senior citizen – the elder vulnerable or incapacitated adult – needs someone to manage his/her financial affairs or take care of his/her living and related arrangements. If the vulnerable adult has not made other arrangements, such as appointing someone through a financial and/or medical power of attorney, a guardianship and/or conservatorship may be necessary. Or perhaps the person designated in the power of attorney is not acting or is abusing that power. In those situations, a guardianship and/or conservatorship may be helpful.
A guardian is a person appointed by the Court to oversee the health and welfare for someone who cannot manage his/her own affairs. A conservator is appointed to manage the person’s financial affairs and assets. Of course, in order to have a guardian or conservator appointed, certain court procedures must be followed. For example, a petition must be lodged with the probate court. After the petition is filed, proper notice must be given to the person allegedly in need of assistance and others and a hearing must be held. Other requirements apply to guardianships and conservatorships.
Berk Law Group is here to help address and resolve virtually all types of elder law matters. Call 480.607.7900 or
contact our office to schedule a consultation with one of our helpful attorneys.
