Arizona Financial Exploitation of Vulnerable Adults Attorneys

Financial exploitation of a vulnerable adult is the improper use of a vulnerable or incapacitated adult’s money or property by someone in a position of trust and confidence. In Arizona it is a civil claim under the Adult Protective Services Act, A.R.S. § 46-456, with remedies that can include up to twice the actual damages, attorneys’ fees, and forfeiture of the wrongdoer’s inheritance.

Berk Law Group has handled Arizona financial exploitation and related claims from Scottsdale since 1996. We represent vulnerable adults, their families, conservators, and personal representatives in pursuing claims, and we defend agents, caregivers, family members, and fiduciaries who have been accused. These cases overlap with probate, trust, power-of-attorney, and guardianship disputes, and we handle all of them.

What Does Financial Exploitation Look Like?

Theft from a vulnerable adult is most often committed by the very people who are supposed to be caring for them: family members, professional caregivers, nursing home or assisted living staff, or other helpers. Common forms include:

• Excessive “gifts” that are inconsistent with the adult’s history of gift-giving
• Forged checks
• Large ATM or cash withdrawals
• Large credit card charges
• Excessive expenses for caregivers, nurses, landscapers, house cleaners, drivers, or other vendors
• Changes of title to vehicles
• Changes to the signers on checking, savings, or investment accounts
• Changes of title to homes or other real estate

Be aware of the warning signs of financial exploitation. A warning sign calls for investigation; it is not itself proof.

How Do You Prove Financial Exploitation in Arizona?

There are four requirements to prove a claim under A.R.S. § 46-456:

1. A person in a position of trust and confidence to the adult (the “fiduciary”);
2. A vulnerable or incapacitated adult;
3. Use of the adult’s property for purposes other than the adult’s sole benefit; and
4. No applicable exception that permitted that use.

Arizona courts are required to construe the Act broadly to protect vulnerable adults. Each element is addressed below.

Who is in a position of trust and confidence?

A person is in a position of trust and confidence to a vulnerable adult in numerous situations, including:

• A person who assumed a duty to provide care to the adult
• A joint tenant or tenant in common with the adult (someone who owns property with the adult)
• A fiduciary to the adult, such as an agent under a power of attorney, financial advisor, attorney, accountant, or other professional
• Someone appointed as, or acting as (even without court appointment), guardian or conservator for the adult
• Someone otherwise in a confidential relationship with the adult based on the totality of the circumstances, such as a person caring for the adult or managing the adult’s finances
• A beneficiary of the adult under a governing instrument such as a will, trust, or deed

The Act does not apply to an agent acting within the scope of their duties for a bank, financial institution, or escrow agent licensed under Title 6; a securities dealer or salesman registered under Title 44; an insurer, including a title insurer, regulated under Title 20; or a licensed health care institution that provides services to the adult.

Who is a vulnerable or incapacitated adult?

A vulnerable adult is a person 18 or older who is unable to protect himself or herself from abuse, neglect, or exploitation by others because of a physical or mental impairment. Either kind of impairment will suffice, so long as it is significant enough that the person cannot protect himself or herself from exploitation. Arizona courts have found that even minimal impairments can be sufficient.

An incapacitated adult also qualifies: a person impaired by mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her person.

What does “solely for the benefit of the vulnerable adult” mean?

A person in a position of trust and confidence must use the vulnerable adult’s assets solely for the benefit of the vulnerable adult, and not for the benefit of the person or the person’s relatives, unless an exception applies. A.R.S. § 46-456(A). The Act essentially provides for strict liability.

Because a person in a position of trust and confidence will typically be a fiduciary to the adult, that person will generally be required to account for how the adult’s property was used. Where the fiduciary cannot account, Arizona courts have presumed that the property was not used for the adult’s benefit and found the fiduciary liable.

What are the exceptions?

A person in a position of trust and confidence may use the adult’s property other than for the adult’s sole benefit where:

• The Arizona Superior Court gives prior approval, finding the transaction is for the adult’s benefit
• The transaction is specifically authorized by the adult in a valid durable power of attorney or valid trust
• The transaction is required to obtain or maintain eligibility for AHCCCS (Arizona’s Medicaid program)
• The person 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’ programs
• The action is consistent with the clearly stated wishes of the adult, found by the court to have been made without coercion while the adult was of sound mind
• The property is given as a gift consistent with a pattern of gifting before the adult became vulnerable

The existence of a power of attorney or trust does not end the analysis. The scope and validity of the document, the adult’s capacity, possible coercion, and the actual use of the property may all be disputed.

What Are the Remedies for Financial Exploitation in Arizona?

Anyone found liable must pay actual damages and reasonable costs and attorney fees in a civil action brought by or on behalf of the vulnerable adult. A.R.S. § 46-456(B). Actual damages will typically be the amount of funds or the value of the property improperly taken.

In addition, the court has discretion to order further remedies, including:

• Additional damages of up to twice the amount of actual damages
• Pain and suffering and consequential damages
• Punitive damages
• Forfeiture or revocation of all or part of the wrongdoer’s interest under any governing instrument, intestate share and elections, and interest in any enterprise
• Severance of joint tenancy property
• Provisional and other remedies, including orders to preserve and return property

An APSA claim is not the only cause of action available. Depending on the facts, claims for conversion (civil theft), unjust enrichment, breach of fiduciary duty, and an accounting may also be pursued. Watch our short video on remedies for financial exploitation under Arizona law.

Who Can Bring the Claim, and How Long Do They Have?

Only the vulnerable adult, a court-appointed conservator, or a court-appointed personal representative may file a financial exploitation claim on behalf of the adult or the adult’s estate. If none of them files, any other interested person may file with the permission of the Superior Court. Determining the proper claimant matters: a concerned family member with strong evidence may still need to obtain authority from the probate court first.

Most statutory claims in Arizona must be filed within one year, but financial exploitation claims must be filed within two years after actual discovery of the cause of action. When a claim was actually discovered depends on the circumstances and is often disputed. Read more about statutes of limitation for financial exploitation, abuse, or neglect.

Defending an Accusation of Financial Exploitation

We defend agents under powers of attorney, caregivers, family members, trustees, and other fiduciaries who have been accused of exploitation. Allegations often arise from incomplete records, family conflict, misunderstanding of an estate plan, disagreement over caregiving expenses, or a transaction the adult knowingly authorized. A defense may turn on:

• Whether the adult was in fact vulnerable or incapacitated at the time of the transaction
• The source and scope of the accused person’s authority under a power of attorney, trust, or court order
• Whether a statutory exception applies, such as an authorized transaction, a pattern of prior gifting, the adult’s uncoerced wishes, or a spousal community transaction
• The adult’s capacity and expressed wishes
• The services, expenses, or consideration actually provided
• Complete financial records and credible witness testimony

Because the accused person will usually bear the practical burden of accounting, records should be preserved immediately. Moving property, deleting communications, recreating documents, or contacting witnesses in a coercive manner creates additional problems. If you have been accused, or suspect you are about to be, get advice before responding.

What to Do If You Suspect Exploitation

1. Address immediate safety. Call 911 if anyone is in immediate danger. Suspected exploitation may also be reported to Arizona Adult Protective Services.
2. Preserve records. Save statements, cancelled checks, deeds, powers of attorney, trusts, care agreements, receipts, messages, and account information.
3. Prepare a chronology. Dates, amounts, the people involved, changes in the adult’s health, and the explanations given.
4. Identify existing authority. Determine whether a guardian, conservator, trustee, agent, or personal representative is already serving.
5. Avoid self-help. Do not seize, hide, retitle, or transfer disputed assets without proper authority.
6. Get advice promptly. The two-year limitation period, the standing rules, and emergency protective options all depend on acting early.

Financial Exploitation Is Different From Abuse or Neglect

Financial exploitation concerns the improper use of money, property, or resources. Physical abuse and neglect concern injury, unsafe confinement, or deprivation of care, and are governed by related but distinct provisions of Arizona law. The same facts may support more than one claim: a caregiver may misuse the adult’s funds while also failing to provide food, medication, or medical care. Read about abuse and neglect of vulnerable adults in Arizona and the warning signs of nursing home abuse.

When a Loved One Needs Help Rather Than a Lawsuit

Sometimes the problem is not exploitation but the absence of anyone with authority to manage a vulnerable adult’s affairs, or an agent under a power of attorney who is not acting. In those situations a guardianship (for personal and health decisions) or conservatorship (for financial affairs) may be the right tool, and each has its own petition, notice, and hearing requirements. Read about Arizona guardianships and conservatorships, and try the free Guardianship & Conservatorship Assessment.

Why Berk Law Group for Financial Exploitation Claims?

• Focused experience. We concentrate on probate, trust, estate, guardianship, vulnerable-adult, and fiduciary litigation, and financial exploitation claims are a core part of that work.
• Both sides. We pursue claims for vulnerable adults and their families and defend those who have been accused, so we know how each side builds its case.
• Coordinated analysis. These matters require bank records, title documents, estate plans, fiduciary authority, capacity evidence, and probate procedure to be analyzed together.
• Direct attorney attention. You work directly with an experienced attorney throughout.
• Recognized. AV Preeminent rated by Martindale-Hubbell, with attorneys recognized by Super Lawyers.

Read our client reviews or watch our video testimonials.

Watch: Elder Financial Abuse in Arizona, Red Flags and Legal Protections

Want to Go Deeper? Download Our Three-Part Financial Exploitation Claims Webinar

Frequently Asked Questions About Financial Exploitation in Arizona

How do you prove financial exploitation of a vulnerable adult in Arizona?

By showing four things: the accused person was in a position of trust and confidence to the adult; the adult was vulnerable or incapacitated; the adult’s property was used for something other than the adult’s sole benefit; and no statutory exception applies. A fiduciary who cannot account for how the property was used may be presumed to have used it improperly.

What damages are available under A.R.S. § 46-456?

Actual damages plus reasonable costs and attorney fees are mandatory on a finding of liability. The court may also award up to twice the actual damages, pain and suffering and consequential damages, and punitive damages, and may order forfeiture of the wrongdoer’s inheritance and severance of joint tenancy property.

Can a family member be liable for financial exploitation?

Yes. Family status neither exempts a person who meets the statutory requirements nor creates automatic liability. The person’s role, authority, conduct, and benefit, and the adult’s vulnerability, must be proved.

Who can file a financial exploitation claim?

The vulnerable adult, a court-appointed conservator, or a court-appointed personal representative. If none of them files, another interested person may file with permission of the Superior Court.

How long do I have to file?

Two years after actual discovery of the cause of action, rather than the one-year period that applies to most Arizona statutory claims. When a claim was actually discovered depends on the facts and is often disputed, so get advice as soon as you suspect a problem.

Is a gift to a caregiver or family member automatically exploitation?

No. A gift consistent with the adult’s pattern of gifting before becoming vulnerable, a transaction the adult authorized in a valid power of attorney or trust, or an action consistent with the adult’s clearly stated and uncoerced wishes can fall within the statutory exceptions.

I have been accused of exploiting a vulnerable adult. What should I do?

Preserve every record of your authority and of how the adult’s money was used, do not move or retitle any disputed property, and get legal advice before responding. Many accusations rest on incomplete records or misunderstandings of what the adult authorized, and the defense turns on documentation.

Serving Scottsdale and All of Arizona

Berk Law Group, P.C. represents vulnerable adults, families, fiduciaries, and those accused of exploitation throughout Maricopa County and across Arizona, from Phoenix, Mesa, and Chandler to Flagstaff and Prescott, from our Scottsdale office.

Discuss an Arizona Financial Exploitation Matter

Related Practice Areas and Resources

• Arizona Fiduciary Litigation
• Guardianships and Conservatorships
• Abuse and Neglect of Vulnerable Adults
• Statutes of Limitation for Financial Exploitation, Abuse or Neglect
• Arizona Powers of Attorney
• Protecting Arizona Vulnerable Adults from Financial Abuse
• Nursing Home Abuse Warning Signs
• Arizona Trust Litigation
• Arizona Probate and Estate Litigation

Financial Exploitation FAQs and Guides

• Elder Financial Abuse in Arizona: Recognizing It, Reporting It, and Taking Legal Action
• Signs of Elder Abuse
• Rights of Joint Account Holders in Arizona