Like financial exploitation of vulnerable adults, physical abuse and neglect of elders also occurs too often in Arizona. While vulnerable or defenseless adults need care and companionship most, their caregivers sometimes fail to fulfill their role or are sometimes negligent. Occasionally, paid caregivers (such as nurses, caretakers, aids or other assistants) engage in abuse of elders or neglect to fulfill their duties to the weak and vulnerable adult. Other times, family members responsible for their care abuse or neglect the impaired person. Irrespective of the situation, frail elders deserve our care, compassion and protection.
For those unfortunate situations where a vulnerable or incapacitated adult is abused or neglected, Arizona has powerful remedies in the Arizona Adult Protective Services Act (“APSA”). Arizona adopted APSA to broaden the scope of rights and claims to counteract and redress abuse and neglect of incapacitated or vulnerable adults. As a remedial statute, Arizona courts broadly construe APSA to protect vulnerable adults.
Below is a brief summary of claims for abuse or neglect of vulnerable adults under Arizona law. Here is a list of some of the warning signs. If you have any questions, we are here to help. Just call 480.607.7900 or contact us.
Claims for Abuse/Neglect of Vulnerable Adults under Arizona Law
In Arizona, claims for neglect or abuse of vulnerable adults is provided for in A.R.S. § 46-455 as construed by the Arizona Supreme Court in Delgado v. Manor Care of Tucson AZ, LLC. There are four requirements for a claim for abuse or neglect of vulnerable adults under Arizona’s Adult Protective Services Act:
- a vulnerable or incapacitated adult,
- sustained an injury,
- caused by abuse or neglect,
- committed by a caregiver.
Each of those four elements is further defined by Arizona law.
Vulnerable or Incapacitated Adult
For purposes of APSA, an adult is simply anyone who is 18 years of age or older. A “vulnerable adult” is an adult who is unable to protect herself or himself from abuse or neglect because of a mental impairment or physical impairment. An impairment is simply a condition that diminishes the person’s abilities. Under the statute, a vulnerable adult also includes an incapacitated adult.
An “incapacitated adult” is defined as someone who has one or more of the following impairments, such that she/he lacks sufficient understanding or capacity to communicate or make responsible decisions concerning their care:
- mental illness, mental deficiency, mental disorder
- physical illness or disability
- chronic use of drugs, chronic intoxication or
- other cause, except minority (a child).
As you would expect, an injury is simply physical or mental damage or harm (including death) sustained by the vulnerable adult. Unlike other claims, the death of the vulnerable adult does not extinguish the vulnerable adult’s estate’s right to bring the claim for abuse or neglect or the right to recover damages for the vulnerable adult’s pain and suffering before the adult died.
Abuse or Neglect of the Vulnerable Adult
Abuse and neglect are both defined in A.R.S. § 46-451 and cover virtually every situation where a vulnerable adult is harmed by negligent or intentional conduct.
“Abuse” means any of the following:
(a) Intentional infliction of physical harm;
(b) Injury caused by negligent acts or omissions;
(c) Unreasonable confinement; or
(d) Sexual abuse or sexual assault.
“Neglect” is the deprivation of food, water, medication, medical services, shelter, supervision, cooling, heating or other services necessary to maintain a vulnerable adult’s minimum physical or mental health.
For example, in the Delgado case, the Arizona Supreme Court found that the plaintiff stated a viable claim for abuse of a frail 74 year-old woman whose caregivers failed to notify her doctor of her deteriorating condition and by failing to provide proper care and treatment as her condition worsened. Given the broad scope of “abuse” and “neglect” under the statute, APSA covers a wide variety of situations were a vulnerable adult does not receive proper care or treatment.
Finally, in order to sustain a claim for abuse or neglect of a vulnerable adult under Arizona law, the abuse or neglect must have been committed by a caregiver. A “caregiver” includes “any person or enterprise that has been employed to provide care, that has assumed a legal duty to provide care or that has been appointed by a court to provide care to such vulnerable adult for having caused or permitted such conduct.” Certainly, paid caregivers, nurses, aids, assistants and caretakers will typically be subject to liability. Also, even unpaid family members who provide such services can be sued if they neglect or abuse the vulnerable adult.
However, some individuals who otherwise qualify as caregivers are not liable unless certain other requirements are satisfied. Specifically, under A.R.S. § 46-455(B), a licensed physician, podiatrist, registered nurse practitioner or a physician assistant, while providing services within the scope of that person’s license, are not subject to civil liability for damages under APSA, unless they were employed or retained by one of the care facilities designated in the statute or were the primary provider of the person’s medical services at one of those facilities.
Other Issues and Considerations
A claim for abuse or neglect of a vulnerable adult must be filed within a two-year statute of limitation.
If someone has treated a vulnerable adult improperly, the vulnerable adult or someone acting on his/her behalf may be able to pursue other claims. For example, the defendant may be liable for medical malpractice, negligence or wrongful death.
This is just a brief summary of the elements for and other issues involving claims for abuse or neglect of vulnerable adults in Arizona.
Berk Law Group is Here to Help Pursue Claims for Abuse/Neglect of Vulnerable Adults in Arizona
Be on the look out for the warning signs of elder abuse or neglect. If your loved one has been abused or neglected or you simply need assistance in a guardianship or conservatorship in Arizona, please call 480.607.7900 or contact us. Our caring attorneys are here to help.