Author Archive

Reporting Abuse, Neglect or Exploitation of Vulnerable Adults

DECEMBER 23, 2013 VOLUME 20 NUMBER 48

As people live longer and the elderly population increases, so does the likelihood of abuse, neglect and exploitation of vulnerable adults. Lawyers, accountants, doctors, nurses, caretakers, bankers — indeed, any professional — faces a growing probability that at some point they will be confronted with the issue of whether to report suspected abuse, neglect or exploitation. For lawyers, especially, the ethical requirement that client confidences be maintained can complicate the problem.

There were over 1,600 allegations of abuse, neglect or exploitation of vulnerable adults reported in Pima County, Arizona (the Tucson area) last year. Surprisingly, fewer than 1% of these were reported by legal professionals. Arizona law imposes an affirmative duty on attorneys to report suspected exploitation of a vulnerable adult to the authorities. Arizona Revised Statutes § 46-454(b) requires any attorney who is responsible for preparing the tax records of a vulnerable adult, or responsible for any “action concerning the use or preservation of the vulnerable adult’s property and who, in the course of fulfilling that responsibility, discovers a reasonable basis to believe that exploitation of the adult’s property has occurred or that abuse or neglect of the adult has occurred shall immediately report or cause reports to be made …”

Keep in mind that an individual does not have to be “elderly” to be a vulnerable adult. Any adult who is unable to protect himself or herself from abuse, neglect or exploitation by others because of a physical or mental impairment is a vulnerable adult. The definition of vulnerable adult is broad and so are the types of abuse and exploitation that the statute is intended to cover. Financial exploitation of vulnerable adults occurs with alarming frequency and in many cases goes unreported because the victim may not be aware of the ways in which he or she is being exploited.

Reports of suspected abuse can be made to the City Police, County Sheriff or (statewide) Adult Protective Services. The Pima County Public Fiduciary also handles cases of suspected financial exploitation. Even if suspected abuse is later found to be unsubstantiated, there are no penalties for good faith reporting. Any attorney who makes a report in good faith is likely to have some civil and/or criminal immunity from liability. You can make a report anonymously, however, the law requires that the report be made immediately, otherwise you may be found guilty of a class 1 misdemeanor.

So, you may be reading this and thinking: “how can I uphold my duty of confidentiality to my client if I suspect that he or she may be a victim of abuse, neglect or exploitation?” How is it possible to balance this ethical duty when reporting of suspected abuse is mandatory? In Arizona, you will not breach your duty of confidentiality if you reveal only information to the extent you believe is necessary to comply with a law that requires the disclosure of such information.

Arizona’s version of the ethical rules governing lawyers provides specific guidance to attorneys in cases where an attorney believes that his or her client of diminished capacity is at “risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest.” In these specific cases, an attorney may take “reasonably necessary protective action,” including consulting with individuals or entities who may be able to protect a client with diminished capacity.  In taking any protective action, among other considerations, an attorney may be guided by the client’s best interests or the wishes and values of the client.

Pima County (and Arizona) is home to a growing number of seniors and vulnerable adults. As we consider the ways our practices can build a healthy community, we must remember the duty of advocacy we owe our clients. If you suspect a case of abuse is occurring and feel unsure about your duty to report, then reach out to one of our colleagues who specialize in professional responsibility or call the Arizona State Bar Ethics Hotline.

What about lawyers practicing in other jurisdictions? State laws vary — many states have mandatory reporting requirements but quite a few of them either do not extend to, or specifically exempt, lawyers from coverage. The ethical rules permitting disclosure when the client is at risk, however, have been adopted in substantially similar form in almost every state.

What about other professionals? Arizona’s mandatory reporting law is very clear: doctors and other medical providers are covered as to reporting abuse, neglect and exploitation, and accountants and tax preparers are covered as to reporting exploitation. Other states vary, with some focusing on medical providers and others on social workers and government officials. If you work with seniors and/or adults with diminished capacity, you should check into your state laws regarding mandatory reporting of abuse, neglect and/or exploitation.

Pondering Your Power of Attorney

SEPTEMBER 16, 2013 VOLUME 20 NUMBER 35

Do you have a power of attorney? If so, do you know how it works? Is a “springing” power of attorney the best way for you to keep authority over your health care and financial decisions until a transition is needed? Many people have powers of attorney but do not understand how they work.

The power of attorney gives authority to an individual (the “agent” or “attorney in fact”) to make financial or medical decisions for another person (the “principal”) in the event of incapacity. Although sometimes health care powers of attorney are incorporated into general durable power of attorney, most people prefer to separate the two kinds of documents. A health care power of attorney gives an agent duties to make medical-related decisions and a durable power of attorney authorizes an agent to handle financial matters. While some states may give your health care agent the power to authority an autopsy, organ donation or burial arrangements, no American jurisdiction recognizes a power of attorney after the death of the principal. If you want to refresher on the basics, you might want to look at this white paper written by Slade V. Dukes.

One of the most important things to understand about your durable or health care power of attorney is whether it is a springing power or surviving power. A springing power of attorney is not immediately effective when you, the principal, sign it. Instead, the power can only become effective and “spring” into action when a specified event occurs like your incapacity or disability. A surviving power of attorney is effective the moment you sign it and survives even if you become disabled or incapacitated.

So, is it dangerous to have a surviving power of attorney and give your agent immediate authority to act on your behalf? Does it make more sense to create a springing power of attorney that only gives your agent authority to act when you really need the help? Now that you’re digging through your desk door in a panic, trying to decipher if your powers of attorney are springing or surviving — relax. The answer is that it depends.

Although Arizona recognizes springing powers of attorney, we see a general trend away from the use of springing powers. Legal standards of capacity are different then medical standards of capacity, so not all doctor’s letters are created equal. Even with a notarized doctor’s letter, it is not uncommon for a financial institution to object that a springing power of attorney has not, well, sprung. There is at least one state, Florida, that does not recognize springing powers of attorney in any form. A general consensus among practitioners seems to be that though springing powers can be used in some circumstances, they should not be the default.

Our office drafts both springing and surviving powers of attorney for our clients. And before we draft a power of attorney, it helps to learn about our clients’ health and family relationships. Making a thoughtful decision about selection of your agent is a critical part of preparing a power of attorney that will serve you well. In some cases, where there is a history of family conflict or a client has complex business or financial arrangements, there may be good reasons to create a springing power of attorney. In other cases, springing powers of attorney can be problematic and create hurdles that may make it difficult for an agent to act when the call for help comes.

So which is the right answer for you? Here’s a quick question for you to consider: do you completely and implicitly trust the person you are naming as agent? If your answer is “yes,” then it should not cause any problem to give them immediate authority to act. If the answer is “no,” then we need to talk about your choice of agent. Think about it: if you do not trust them enough to give them immediate authority, then perhaps they are not the right agent for you.

It’s easy to be glib, however, and a lot harder to actually live your life. Sometimes there are not good choices. Sometimes people may simply not be comfortable with an immediately effective power of attorney. When we prepare your estate plan, you should talk through your concerns and preferences — the point of signing a power of attorney is to give you peace of mind, not to make you more anxious.

Are You an Organ Donor? Are You Sure?

JULY 15, 2013 VOLUME 20 NUMBER 26

Do you have strong feelings about being an organ donor? It is a topic that too often goes undiscussed while preparing your estate plan. That’s one time to consider whether you want to be an organ donor — particularly if you have meant to address it but haven’t gotten around to the topic.

You probably remember the last trip you took to update your driver’s license, but maybe you cannot remember if you ever registered to be an organ donor. Or perhaps, you’re a registered donor, but have not had a conversation with your friends and family about your decision to donate. Maybe you feel strongly that you do not want to donate your organs. In each of those circumstances, it is important to make your wishes clear and to talk with your family and your attorney about the topic.

The National Conference of Commissioners on Uniform State Laws adopted The Uniform Anatomical Gift Act in 1968 and went on to revise the Act most recently in 2006.  Arizona is one among over forty states that adopted the newer version of the Act. Arizona Revised Statutes §§36-841 (and the 20-or-so following statutory sections), lays out the groundwork for making an organ donation in the state. Arizona is unique in that it is one state where a donor may register and select what specific organs he or she wishes to donate.

But how do you become an organ donor in Arizona? If you are 18 years or older, you can become a donor by registering with Donate Arizona, or including written instructions in your will. Additionally, you can include language in your power of attorney that authorizes your Agent to consent to donation. Even if you never register, you can still become a donor if you include language in your will or power of attorney providing your agent with authorization to donate on your behalf. It is never too late to sit down and make your wishes clear.

Kris Patterson, with the Donor Network of Arizona, encourages people to do three important things if they wish to donate: register with a local network; talk to your family and friends about your desire to become a donor; and let your doctors determine whether you are a good candidate to donate.  She explained that people frequently assume that they are too old to donate, or rule out registering to become a donor because they have a bad heart or bum hip. When it comes down to it, there is no litmus test that identifies whose organs can be used.

The Act lists people in order of priority who may provide consent upon your death to become (or not become) a donor. The person who you appoint as your Agent under your power of attorney is first in line. If you do not appoint an Agent, the Act provides that a family member, a guardian, or friend, and in certain cases, even a domestic partner can share your decisions about organ donation with medical personnel after your death. As a last resort, you can always include instructions about organ donation in your will.

So, take a moment to think, have you made a decisions about organ donation? If so, does your family know? Have you been thinking about making an appointment to update your old will or power of attorney? If so, when you come in to see us, let’s talk about organ donation and make sure that your documents reflect your decisions.

Executive summary:

Want to make sure you are an organ donor? If you are an Arizona resident, do these three things:

  1. Fill out the Arizona donor registration form. Include any special provisions (like approval or refusal for individual organs, preference for transplant over research or the reverse, or anything else you feel strongly about).
  2. Include a provision authorizing organ donation in your health care power of attorney.
  3. Talk with your family — especially the agent on your health care power of attorney AND any family member who might not approve of organ donation.

Want to make sure you are NOT an organ donor? Do these two things:

  1. Make your wishes clear in your health care power of attorney (and maybe in your will as well).
  2. Talk with your family — especially the agent on your health care power of attorney AND any family member you think might really want to approve organ donation.

 

 

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