Elder abuse received worldwide attention this past February when a California judge issued a restraining order against the stepson of 90 year old actor Mickey Rooney. Mr. Rooney filed the request after years of alleged abuse, including his step-son withholding his medication and exploiting his finances. Most vulnerable adults, however, do not have the advantage of attracting press or the money to hire a high powered attorney. Unfortunately, with the aging of the baby boomers and the down economy, claims of abuse or neglect of a vulnerable adult, and exploitation of assets, have increased within the court system. This article is intended to assist you in determining whether a vulnerable adult is in need of protection and, if so, what steps you should take in order to protect the vulnerable adult.
Elder abuse is sometimes referred to as an invisible crime because it is difficult to detect for a number of reasons. The most obvious reason is that nobody is aware of the abuse. In most cases the vulnerable or incapacitated person does not have a voice. Perhaps that person is not aware of the abuse because he or she is an incapacitated person due to mental deficiency or illness, or is a vulnerable adult and is dependent upon that person or persons to whom they are afraid to voice their concerns. Below is a list of some of the warning signs that abuse, neglect and/or financial exploitation may be occurring:
- Injury not cared for properly or delays in seeking care for treatment;
- Malnutrition, dehydration, improper administration of medication, lack of basic hygiene, isolation and depression;
- Person is being asked to sign financial documents; e.g., Powers of Attorney;
- Person is accompanied by a family member or other person who seems to coerce him/her into making transactions, especially in cases where large amounts of cash are being withdrawn; and
- Person is concerned or confused about “missing” funds in his or her account.
Adult Protective Services
In 1988, Arizona enacted the Adult Protective Services Act (“APSA”) to protect vulnerable and incapacitated adults from physical and financial neglect, abuse or exploitation. Arizona Revised Statute Ann. § 46-456(A) states:
“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:
- The superior court gives prior approval of the transaction.
- 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.”
A position of trust and confidence not only applies to family members but also to persons who have assumed a duty to provide care for a vulnerable adult, persons who are in a fiduciary relationship with a vulnerable adult, and persons who are joint tenants or tenants in common with a vulnerable adult. Fiduciary relationships include individuals acting pursuant to a financial power of attorney, as well as those acting as trustee, successor trustee or even co-trustee of a trust.
Civil and Criminal Penalties
There are civil and criminal penalties for persons in a position of trust and confidence who financially exploit an incapacitated or vulnerable adult. Civil penalties can include actual and treble damages. Actual damages might include the amount of monies and assets stolen or used without benefitting the vulnerable or incapacitated owner. In addition, the court has the power to order a person who has violated these statutes to forfeit all or a portion of their inheritance from the vulnerable adult. It should also be noted that in 2008 the Arizona Court of Appeals found a financial exploitation claim survives the death of an incapacitated person, just as a financial exploitation claim survives the death of a vulnerable adult. A personal representative is permitted to bring a claim under APSA on behalf of the incapacitated or vulnerable adult.
Reporting Suspected Abuse
If you suspect a person is being abused or exploited, there are a number of ways for you to take action and in some cases may be required under Arizona law to report such suspected abuse. For example, a person who has been appointed guardian or conservator of a vulnerable adult is required to report or cause a report to be made to the appropriate superior court based on the county of residence within 48 hours if the guardian or conservator has a reasonable basis to believe that abuse, neglect or financial exploitation has occurred. An agent holding a power of attorney for a vulnerable adult owes the same fiduciary duties as a guardian or conservator to a vulnerable adult. Attorneys are also required to take certain steps when they suspect that a client may be a victim of elder abuse or exploitation. However, it is more likely that a child, relative, friend or acquaintance is the person who is in the best position to identify or suspect that a person is being abused, neglected or exploited. These individuals are in most cases not under any legal duty to report their suspicions, but such reports are invaluable in identifying elder abuse.
Last year, our firm was approached by a daughter of a 98 year old woman who had been diagnosed with advanced dementia and had recently signed several powers of attorney. After talking with the daughter it was also discovered that her mother was being isolated from the family by another sibling and had developed a bedsore. Our firm immediately filed a Petition for Emergency Guardianship of the mother (a conservatorship was not requested because the mother had fully funded her revocable trust).
Upon filing, the sibling objected to the Petition claiming the mother had appointed him as Agent, Trustee and Personal Representative. It was also discovered that the sibling facilitated a sale of real property owned by his mother and received almost $100,000 from the proceeds of the sale. The sibling also took his mother to the bank to make large cash withdrawals. Obviously our client was in a difficult position. She wanted to protect her mother but she did not want to have her sibling disinherited or have him charged criminally. Ultimately, our firm was able to negotiate a settlement with the sibling. The sibling agreed to return all of the money he received from his mother with interest, in addition to paying all attorneys fees related to the case. If our client had not come forward with her concerns, her mother could have faced years of abuse, neglect and financial exploitation.
If you have any questions or concerns regarding how you can protect yourself and your loved ones, please contact our office. In cases of emergencies, you can also contact Adult Protective Services or the police.
Laura Morrison Trujillo