Arizona Has Strong Laws to Deal with Exploitation of Vulnerable or Incapacitated Adults
A person who is close to a vulnerable or incapacitated adult must use the adult’s money and other property for the adult’s benefit. A.R.S. 46-456(A) provides that:
A person who is in a position of trust and confidence to a vulnerable adult shall 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 either of the following applies:
1. The superior court gives prior approval of the transaction.
2. The transaction is specifically authorized in a valid durable power of attorney that is executed by the vulnerable adult as the principal or in a valid trust instrument that is executed by the vulnerable adult as a settlor.
Pursuant to A.R.S. § 46-456(A), “[a] person who is in a position of trust and confidence to an incapacitated or vulnerable adult shall act for the benefit of that person to the same extent as a trustee.” In other words, the person has fiduciary duties and must protect and use the incapacitated or vulnerable adult’s assets solely for the benefit of the incapacitated or vulnerable adult. Further, A.R.S. § 46-456(B) states that “[a] person who is in a position of trust and confidence and who by intimidation or deception knowingly takes control, title, use or management of an incapacitated or vulnerable adult’s asset or property with the intent to permanently deprive that person of the asset or property is guilty of theft as provided in § 13-1802.”
There are severe penalties, discussed below, for a person who violates these provisions.
Abuse or Neglect of a Vulnerable Adult
A person who is caring for a vulnerable or incapacitated adult must also not neglect or abuse the adult. A.R.S. § 46-455(a) provides that “a person who has been employed to provide care, who is a de facto guardian or de facto conservator or who has been appointed by a court to provide care to a vulnerable adult and who causes or permits the life of the adult to be endangered or that person’s health to be injured or endangered by neglect is guilty of a class 5 felony.”
In the vulnerable adult statute, key definitions are included in Section 46-451.
For example, a vulnerable adult is defined as “an individual who is eighteen years of age or older and who is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment.” A vulnerable adult also includes an incapacitated person:
Incapacitated person means any person 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, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.
For the purposes of these sections the following additional definitions apply:
1. “Deception” means that a person deceives an incapacitated or vulnerable adult by knowingly doing any of the following:
(a) Creating or confirming a false impression in an incapacitated or vulnerable adult’s mind.
(b) Failing to correct a false impression that the person is responsible for creating or confirming in an incapacitated or vulnerable adult’s mind.
(c) Making a promise to an incapacitated or vulnerable adult that the person does not intend to perform or that the person knows will not or cannot be performed. A person’s failure to perform a promise is not by itself sufficient proof that the person did not intend to perform the promise.
(d) Misrepresenting or concealing a material fact that relates to the terms of a contract or an agreement that the person enters into with the incapacitated or vulnerable adult or that relates to the existing or preexisting condition of any of the property involved in a contract or an agreement.
(e) Using any material misrepresentation, false pretense or false promise to induce, encourage or solicit an incapacitated or vulnerable adult to enter into a contract or an agreement.
2. “Intimidation” includes threatening to deprive an incapacitated or vulnerable adult of food, nutrition, shelter or necessary medication or medical treatment.
3. “Position of trust and confidence” means that a person is any of the following:
(a) One who has assumed a duty to provide care to the incapacitated or vulnerable adult.
(b) A joint tenant or a tenant in common with an incapacitated or vulnerable adult.
(c) One who is in a fiduciary relationship with an incapacitated or vulnerable adult including a de facto guardian or de facto conservator.
The penalties for financial exploitation, abuse or neglect in violation of these laws are severe, so it is important to have an experienced attorney. Our law firm handles all types of estate and property disputes, including pursuing and defending against exploitation claims.
Penalties for Exploitation of a Vulnerable Adult
The penalties for exploitation of a vulnerable or incapacitated adult are severe. A.R.S. 46-456 authorizes a multitude of sanctions, including, among others, the following:
- award of actual damages in a civil action brought by or on behalf of a vulnerable adult;
- award of additional damages for an amount up to two times the amount of the actual damages;
- order the person to forfeit all or a portion of the person’s benefits under the vulnerable adult’s estate, including statutory elections and benefits; and
- revoke, in whole or in part, any revocable disposition in a will or trust.
Arizona law also allows the Court to enter orders to protect a vulnerable adult’s assets, even before a final decision is made whether there was any improper conduct. A.R.S. § 46-455 provides that:
Before a determination of liability, the orders may include, but are not limited to, entering restraining orders or temporary injunctions or taking such other actions, including the acceptance of satisfactory performance bonds, the creation of receiverships and the appointment of qualified receivers and the enforcement of constructive trusts, as the court deems proper.
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