Financial Exploitation Case Leads to Judgment, Disinheritance

MARCH 2, 2015 VOLUME 22 NUMBER 9

We hear variations on this same story once every week or so. Dad (it might be Mom, or Aunt Bridget, or a long-time family friend) seemed to be adrift after his wife (her husband, her long-time companion) died. Then he met this woman who moved in with him (or moved her to his town), cut off family contact, got a power of attorney signed and proceeded to transfer assets.

Too often there’s not much we can do about the story. The money may be all gone (the people who take advantage of seniors in this fashion are often drug users, gamblers or marginal characters themselves). The family member might actually want to live with the person everyone sees as an exploiter. Sometimes it’s hard to even locate the victim.

Once in every few cases, though, it may be possible to protect the elderly victim, improve their situation and even secure a judgment against the exploiter. That’s what happened in a case that finally (after a decade of litigation) seems to have gotten resolved by the Arizona Court of Appeals.

Bridget Greene (not her real name) was 99 when she first came to the attention of Tucson lawyer (and professional fiduciary) Denice Shepherd (her real name) in 2005. Based on a report from Adult Protective Services, Denice filed a guardianship and conservatorship proceeding to extract Bridget from her “deplorable” living situation, and to begin the process of recovering some or all of her assets.

As the story developed, it became apparent that Bridget had befriended one Andrew Brice almost two decades earlier, after her husband’s death. She and her husband had no children; her closest relatives were nieces and nephews. Just two years before the guardianship/conservatorship proceeding, Bridget had moved back to Arizona after a short stint living near her nieces in Virginia. She had then signed a power of attorney naming Andrew as her agent, and transferred her home into Andrew’s name. She had also signed a new, handwritten will leaving everything to Andrew.

Denice promptly initiated an action against Andrew, seeking return of the money he had moved from Bridget’s account to his own. She recovered over $60,000 from three bank accounts, and then initiated a complaint against Andrew claiming that he had exploited a vulnerable adult.

Under Arizona law at the time (it has since been softened), a person found to have exploited a vulnerable adult would automatically be liable for three times the amount taken, plus being disinherited from receiving anything from the victim’s estate. Denice secured a judgment against Andrew for $247,531.23 (three times the amount he had taken); the handwritten will and power of attorney were also invalidated. The judgment was reduced by $65,155.99 that Denice had collected from Andrew by that time.

Bridget lived another five years after being removed from her filthy home and the “care” she had been receiving. After she died in 2010, Andrew tried to reassert the handwritten will naming him as beneficiary. He also challenged Denice’s appointment as guardian and conservator, and the award of damages and attorneys fees.

The probate judge ultimately found that Andrew had been disinherited by his exploitation, that he had no basis for seeking Denice’s removal as guardian and conservator, that Bridget’s prior will (which had left nothing to Andrew) was valid, and that the judgment against him was proper. When Andrew appealed, the Court of Appeals agreed on every point.

It is worth noting, as the Court of Appeals does, that much of probate court’s ruling against Andrew is based on his failure to proceed properly in the underlying lawsuit. He answered the complaint with a general denial, but without specific allegations that would support his argument. His response to a motion for entry of judgment against him did not challenge the factual allegations, which were thus assumed to be correct. He filed numerous pleadings and motions, but apparently without good legal advice.

The final resolution of Bridget’s guardianship/conservatorship/probate case, though, was clear. Bridget was a vulnerable adult, impaired by her diminishing mental capacities. Andrew was her caretaker (he claimed that they held themselves out as a married couple, but he acknowledged that they were never actually married), and owed her a duty not to commingle their assets or take advantage of her. He breached that duty by transferring her assets into his own name. He might have also neglected her, though the probate court never had to reach that question.

Arizona law at the time provided for automatic disinheritance of someone who exploits a vulnerable adult (it has since been changed to permit, but not require, the court to order disinheritance). It also provided for damages automatically set at three times the amount actually exploited (it has since been changed to allow the court to enter judgment of up to two times the amount of damages). The Court of Appeals upheld the orders entered by the probate court under the “vulnerable adults” statute. In Re Garner, Deceased, February 25, 2015.

Even though Arizona’s law has been relaxed somewhat, it remains stronger than the similar provisions in many other states. Although it is often hard to recover damages for abuse, neglect or exploitation of vulnerable seniors, sometimes the legal tools actually work fairly well. Similar stories might be told in other states, though we don’t hold ourselves out as experts on other states’ laws or practices. But if you know someone who has been taken advantage of in similar circumstances, we strongly suggest that you get good legal advice to consider whether there might be some recourse to recover lost assets and, much more importantly, protect vulnerable seniors and improve their lives.

©2017 Fleming & Curti, PLC