Posts Tagged ‘abuse’

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.

Physical Limitations Can Lead to “Vulnerable Adult” Finding

MARCH 12, 2012 VOLUME 19 NUMBER 10
Georgia Griffin (not her real name) moved from Kansas to Arizona in 1997. She lived in her own townhome in Sun City West, a retirement community northwest of Phoenix, until 2001, when she moved in next door to her daughter Barbara, who lived in Scottsdale.

Georgia’s story was fairly typical: she had lived at home independently until, at age 90, her physical ailments made it difficult for her to get along without help. The move to be next to her daughter was occasioned by her daughter’s concern that she was at risk living alone. One particular concern: after Georgia fell in her home, she worried that if she were to fall again she might not be able to get up, even to summon help.

After Georgia’s initial move to Arizona, daughter Barbara helped her with her banking, filling out checks and making transfers and withdrawals. She was a joint tenant with her mother on some accounts; several were changed from joint tenancy to “payable on death” (POD) to Barbara at some point. Meanwhile, Georgia’s other daughter Elizabeth was less involved — though she also lived nearby.

Shortly before Georgia’s move to be next door to Barbara, Barbara had purchased six condominium units in the complex where she lived. In fact, Georgia’s move was into one of those units. Elizabeth would later argue that the money for those purchases came from their mother’s accounts.

After Georgia’s death in 2003, Elizabeth initiated a probate proceeding and was appointed as personal representative of Georgia’s estate. She then filed an action against Barbara, alleging that Barbara had taken advantage of Georgia while she was a “vulnerable adult” — an important term under Arizona’s law protecting seniors and those with disabilities.

After a five-day trial, she convinced the judge that Georgia was vulnerable, that Barbara had held a position of trust with their mother, and that she violated that trust by using Georgia’s money to purchase her condominium units. The judge entered a judgment for $179,518.51 against Barbara, and imposed a constructive trust on five of the condominium units (ordering that they could be sold to satisfy the judgment). The judge also ruled that Barbara had forfeited any right to inherit from her mother’s estate; the judge did not impose treble damages against Barbara, which was an option available at the time (the Arizona legislature has since reduced the maximum penalty to double the amount of the basic judgment, though that would not have made any difference in this case).

The Arizona Court of Appeals upheld the judgment. The key question raised by Barbara on appeal: how could the trial court have found Georgia was “vulnerable” when the evidence indicated she was fully competent? Can vulnerability be based solely on evidence of physical limitations?

The short answer: yes. The appellate judges ruled that vulnerability for purposes of Arizona’s exploitation statute can be predicated solely on physical impairments if, as a result of the impairments, the victim is unable to protect herself from the exploiter. Mental impairment is not necessarily required. In this case, according to the court, Georgia’s “diminished vision and hearing could also have made her more susceptible to exploitation, as they could make her less aware of her surroundings and the circumstances of any transactions in which she became involved, thereby making her less able to protect herself if targeted for exploitation.”

That is not to say that every transaction Georgia might enter into would be suspect. “A vulnerable adult may still have the capacity to transfer property,” according to the judges. In fact, Georgia had transferred her original townhome to Elizabeth and the family home in Kansas to Barbara; those transfers did not necessarily amount to exploitation.

There is a second interesting holding in the appellate decision, though it is perhaps less far-reaching in its scope. After the trial was over, and while one of Barbara’s sons was packing up his belongings to move out of the condominium he lived in (and which would now be sold), he said he discovered old letters written by Georgia. Those letters related how Georgia was helping Barbara and her husband purchase several condominiums so that they would have income when they retired. Barbara moved to reopen the trial to introduce those letters, but the trial judge refused.

That refusal was not error, according to the Court of Appeals. There was insufficient evidence that the letters could have been found by diligent search before the trial. More importantly, the letters would not likely have changed the outcome. Why not? Because Barbara’s (and her husband’s) defense throughout the trial had been not that Georgia permitted the use of her money but that none of her money was involved in purchasing the condominiums. The letters would therefore have run counter to their core argument. In re Estate of Gorsik, April 12, 2012.

There are several footnotes worth mentioning in discussion of the appeal in Georgia’s case. First, the decision is a “Memorandum Decision.” That means that, though the appellate court laid out its reasoning and legal arguments, the decision is not “published” and therefore can not (at least not usually) be cited as precedent in other, similar cases. It is in the nature of lawyers and judges to make and keep records, so one irony about unpublished (memorandum) decisions is that they are published,  can be read by anyone who wants to take the time to look for them, and are often cited as at least some evidence of the inclinations of appellate courts.

Another small irony: even as Georgia’s case was working its way through the courts, the Arizona legislature has been busy weakening the protections afforded to victims of abuse, neglect and exploitation. First, as noted above, was the reduction of “treble damages” awards to “double damages.” That, as it turned out, had no direct effect on Georgia’s case, since the trial judge decided that extra damages should not be awarded — but it does make such cases less attractive to lawyers with experience in exploitation cases, and it reduces the likelihood that any given case will be initiated in the future. Since then, the legislature has continued to push at the margins of abuse, neglect and exploitation cases; there is a bill pending even now that would eliminate the availability of an award of attorneys fees to the successful party in cases involving vulnerable adults.

Why would the legislature want to eliminate protections for vulnerable adult victims? Probably because some abuse, neglect and exploitation cases are filed against nursing homes, long-term care homes and medical providers, and they tend to have legislators’ attention. Vulnerable adults, by contrast, have a very poor lobbying record.

What is the Value of a Senior’s Life?

SEPTEMBER 6, 2010 VOLUME 17 NUMBER 28
The question addressed in a ruling last month by the Arizona Court of Appeals seems provocative. In a lawsuit based on the Arizona law prohibiting abuse, neglect or exploitation of vulnerable adults, does the very life of the abused senior have any intrinsic value? The Court’s answer: perhaps, but the lawsuit can not recover damages for the loss of that life.

Mary Winn died about a month after being admitted to Plaza Healthcare, a Scottsdale, Arizona, nursing home, in 1999. Four years later her husband George Winn filed a lawsuit against Plaza, alleging that it had violated Mrs. Winn’s rights under Arizona’s Adult Protective Services Act. Under the APSA, a vulnerable adult who has been abused, neglected or exploited may recover damages suffered as a result of that abuse, neglect or exploitation. Mr. Winn argued (on behalf of his wife’s estate) that he should be able to recover on behalf of his late wife, and that she would have been entitled to actual damages for the loss of her life, as well as punitive damages.

Not so, argued the nursing home. Mrs. Winn obviously could never have collected damages for her own death, and her estate’s recovery was limited to what she could have recovered. In fact, the estate’s possible recovery was less than her damages, since any claim for pain and suffering she experienced at the end of her life ended with her death. With no actual damages to recover, her estate could not seek punitive damages.

Mrs. Winn’s estate argued that her life had some “intrinsic” value, and that it should be recoverable. The estate conceded that she was elderly and ill when she arrived at Plaza Healthcare, and that she could not be expected to earn a salary given her age and condition. But, insisted the estate’s lawyers, a human life has some inherent value.

The trial court agreed with the nursing home, and limited the estate’s proof to just actual damages. After an informal arbitration proceeding (the estate conceded that the remaining damages were less than $50,000, and therefore subject to mandatory arbitration rules) a judgment against was entered in favor of Plaza Healthcare.

The Arizona Court of Appeals reviewed the trial court’s ruling and agreed. There is no cause of action under the vulnerable adults statute, ruled the appellate judges, for the “intrinsic or inherent value” of a deceased claimant’s life. Mrs. Winn’s estate — and her husband — recovers nothing from Plaza Healthcare. Estate of Winn v. Plaza Healthcare, Inc., August 10, 2010.

To be fair, the appellate court did not rule that there is no value to the life of an elderly, disabled and vulnerable senior. All the ruling says is that there is no right to recover under the Arizona Adult Protective Services Act for the loss of life itself.

Does that mean that Mr. Winn had no claim for his wife’s alleged mistreatment? Not necessarily — he might have been able to file his lawsuit on his own behalf if he had acted more quickly. By the time he filed it had been more than four years since his wife’s death — too late for any wrongful death action but not too late for a viable lawsuit under the Adult Protective Services Act, which had a much longer statute of limitations.

There is another interesting footnote to the Winn case. Last month’s decision from the Court of Appeals is not the first time Mrs. Winn and her estate have been before Arizona appellate judges. In fact, her case had been appealed twice before — once in 2006/2007, and again a year later. The first trip through the appellate system involved the trial judge’s dismissal — ultimately reversed by the Arizona Supreme Court — on the basis that a probate proceeding filed more than two years after the decedent’s death did not permit filing of a lawsuit in the estate’s name. A year later the Court of Appeals dismissed an attempted appeal from the trial judge’s initial refusal to allow any recovery for the inherent value of Mrs. Winn’s life. That appeal had to wait for final resolution of the entire lawsuit, which was accomplished before the current (and probably final) appeal.

Court Cases Demonstrate Two Remedies For Elder Abuse

MAY 17, 2004 VOLUME 11, NUMBER 46

Two recent appellate court cases illustrate different aspects of the law’s response to abuse and exploitation of seniors. Taken together the two cases underscore that protection of vulnerable seniors can be a priority of the legal system.

The first case tested California’s law on elder abuse, which permits the courts to (among other things) disinherit a family member or devisee who exploits a senior. Laura Marie Lowrie had accumulated an estate of approximately $1 million during her 89 years. During the last ten years of her life her son Sheldon Lowrie took over more and more of the management of her finances. By the time of her death in 1999 he had gotten her to transfer two houses to him. He had also persuaded her to modify her revocable living trust so that the bulk of her estate would pass to him.

Ms. Lowrie’s granddaughter Lynelle Goodreau believe that her uncle had taken financial advantage of his mother. She brought an action to set aside changes in the living trust, and to secure return of property that should have belonged to the trust.

Ms. Goodreau alleged that her uncle had abused his mother physically and financially. According to her, he isolated his mother from contact with other family members. He taped her telephone handset so that she could not make or receive calls, he locked her security door from the outside so she could not leave her home, and he put a warning sign on the front door instructing social workers and peddlers not to bother her.

Among the choices available to the judge under California’s elder abuse statute was the possibility of ordering that Sheldon Lowrie should be treated as having died before his mother. He was the remainder beneficiary of her trust, and would receive the bulk of her assets under its terms. If he had died before his mother, however, most of the trust assets would pass to Ms. Goodreau.

After hearing testimony from most of the family members, plus neighbors, friends and acquaintances of Ms. Lowrie, the trial judge decided that Mr. Lowrie had taken advantage of his mother. The judge noted that he had stolen hundreds of thousands of dollars from her and from the family business, and that he had bought seven or eight antique automobiles, had paid off his own personal credit card bills, and had accepted “gifts” of most of her physical property.

Based on that testimony the trial judge decided that Mr. Lowrie should be treated as having predeceased his mother. It ordered that he pay Ms. Goodreau $665,623.60 to replace the money he had taken from his mother, plus $250,000 for his mother’s pain and suffering, plus another $50,000 in punitive damages. The California Court of Appeal upheld the judgment and the finding of disinheritance. Estate of Lowrie, April 30, 2004.

Arizona law is similar to the California provision on elder abuse. One alternative available to the courts in extreme cases of abuse, neglect or exploitation is to work a disinheritance of the offender. Just as in the Lowrie case, that would result in the abuser/exploiter being treated as already deceased, and the elder’s property passing to heirs or devisees other than the offender.

In the second elder abuse case reported in recent weeks, a care home operator in Hawai’i was convicted of manslaughter in the death of a resident of her home. The Hawai’i Court of Appeals upheld the conviction, despite her argument that it had not been shown that she intended any harm.

Chiyeko Tanouye was eighty years old at the time of her death. She had lived in an adult care home operated by Raquel Bermisa for only a few months, but her condition had worsened dramatically and quickly.

Ms. Bermisa took Ms. Tanouye to her doctor’s office on June 30, 1999, for treatment for a urinary tract infection. During that visit the doctor noted that Ms. Tanouye had a decubitus ulcer (a bedsore) which, at about five centimeters in size, required attention. He instructed Ms. Bermisa to wash the ulcer with Betadine cleaning solution and to apply Intrasite gel daily, and to bring her back a week later for a follow-up visit.

When Ms. Bermisa returned with Ms. Tanouye on July 7, the decubitus ulcer had not cleared up. The doctor referred her to a specialist for further treatment.

Ms. Tanouye was seen by the specialist just two days later, but her condition had worsened markedly. He saw two decubitus ulcers rather than one, and both had areas of dead tissue. He cleaned the ulcers, applied sterile gauze moistened with saline solution, and instructed Ms. Bermisa to change the dressing two or three times each day. He scheduled another follow-up visit for a week later, but Ms. Bermisa and Ms. Tanouye did not return.

Instead, Ms. Bermisa arrived at the Pali Momi emergency room a month later with Ms. Tanouye in the front seat of her car. She told nurses at the emergency room that she had been out shopping with Ms. Tanouye and the other residents of her care home, and that something was wrong with Ms. Tanouye.

Something was indeed wrong. Ms. Tanouye’s decubitus ulcers had grown much larger, and they showed no signs of treatment. The smell from the ulcers was overpowering to the nurses, and they noted that one of Ms. Tanouye’s heels was also ulcerated. They tried their best to treat Ms. Tanouye but she died the next day.

Ms. Bermisa was charged with manslaughter for her apparent failure to provide adequate care. At her trial testimony was offered from an adult protective services worker, the nurses who provided care to Ms. Tanouye during her final hospitalization, the doctors who had treated her and directed Ms. Bermisa how to care for her, and the trainer who had given Ms. Bermisa instruction leading to her certification as a Certified Nurse’s Aide (CNA). The jury convicted her, and she appealed.

The Hawai’i Court of Appeals affirmed Ms. Bermisa’s conviction. Although she argued that the prosecutor had not shown that she had any intention to harm Ms. Tanouye, the court found that she had acted recklessly, and that she had a duty to provide adequate care. The court also noted that Ms. Bermisa was properly trained to recognize the problems Ms. Tanouye was suffering, and she should have recognized the importance of maintaining the treatment regimen directed by Ms. Tanouye’s physicians. When she failed to follow through with proper treatment, and apparently failed to appreciate the significance of her resident’s condition, she violated her duties as a caretaker. State v. Bermisa, May 7, 2004.

Nurse’s Aide Disciplined Based On Deceased Patient’s Affidavit

JULY 8, 2002 VOLUME 10, NUMBER 1

Identifying and protecting against abuse of nursing home residents is a difficult and continuing problem for authorities. The frailty and dependence of residents, coupled with high turnover and, too often, poor training and supervision, make it a challenge to prove cases of abuse or neglect. A recent incident in New York illustrates some of the common problems of proof in such cases.

Cindy M. King was a certified nurse’s aide working in a skilled nursing facility in Clinton County, New York. She was charged with forcibly grabbing an elderly resident’s arm and pulling her out of her bed. After a hearing before the State Department of Health she was found to have engaged in behavior constituting patient abuse and patient neglect.

Ms. King appealed the determination. Among other things, she argued that the hearing officer should not have accepted hearsay evidence. The appellate court rejected that assertion and upheld her discipline.

By the time of the hearing the patient Ms. King was accused of abusing had died. While the patient’s death was not a result of Ms. King’s treatment, it nonetheless points up a common problem in investigating and prosecuting cases of abuse in nursing homes: because the residents tend to be both elderly and frail, they often die before the legal proceedings can be resolved. In other cases residents may be dependent on caretakers and anxious about accusing anyone of misbehavior, or their mental abilities may be so diminished that their testimony is unreliable.

In Ms. King’s case, the resident had signed an affidavit about the incident. Other staff members testified about her descriptions of the events at the time. Both kinds of testimony were introduced.

Ms. King argued that the resident’s statements should not be admitted or considered because she did not have any opportunity to cross-examine the resident, and the resident’s mental status made her testimony inherently unreliable. The appellate court upheld the hearing officer’s consideration of the resident’s statements, pointing out that other staff members described her as alert and coherent. In any event, the court noted, the resident’s version of the events was corroborated by other sources—including Ms. King herself, whose version of the incident differed from the resident’s in only one key respect.

According to Ms. King, she had assisted the resident to get out of bed by supporting her back; according to the resident and other witnesses, she had grabbed the patient’s arm and pulled her out of bed. There was some evidence that Ms. King had admitted that the resident’s version was more accurate. With substantial evidence to support the Department of Health’s determination, Ms. King’s objections were denied and her appeal dismissed. King v. New York State Department of Health, June 13, 2002.

Voting Rights and Guardianship

SEPTEMBER 26, 1994 VOLUME 2, NUMBER 12

Court in Phoenix challenging Arizona’s voting laws. The challenged provisions prevent people for whom guardians have been appointed from voting in state, local or federal elections.

Arizona’s Constitution provides, in Article VII, Section 2, that “[n]o person under guardianship, non compos mentis, or insane, shall be qualified to vote at any election….” Statutes adopted to implement that provision require the Superior Court Clerk to notify the County Recorder whenever a person has been “declared insane” or had a “guardian of the person and estate” appointed. Perhaps because of the archaic language of the statute, few (if any)of Arizona’s counties comply with this requirement.

Carl Pierson, a 37-year-old Globe resident, is the plaintiff in the Center’s lawsuit. Mr. Pierson is mildly retarded, and the Gila County Public Fiduciary has been appointed as his guardian. Although he registered to vote last May, his name was removed from the voter lists this month.

The lawsuit claims that denial of the right to vote to all wards in guardianship proceedings violates the 14th Amendment to the U.S. Constitution, which guarantees “equal protection” of the law to all citizens. The suit also alleges that the Arizona provisions violate the Americans with Disabilities Act, which was adopted by Congress last year, and the Voting Rights Act.

If the lawsuit is successful, the result would probably be that guardianship wards will be permitted to vote unless someone specifically challenges their capacity to understand the voting process. Estimates indicate that over 3,000 Arizona residents are under guardianship or conservatorship.

Federal Study of Abuse

The U.S. Department of Health and Human Services has announced that it will spend a million dollars on a three-year investigation of abuse, neglect and exploitation of older Americans. Funds will come from the Administration on Aging and the Administration for Children and Families; the study will be conducted by the National Center on Elder Abuse in Washington.

Fernando Torres-Gil, assistant secretary for aging of the Department, announced the study last week. He described previous studies which indicate that as many as 1.5 million senior Americans (approximately one in 20) may be victims of abuse, and speculated that the actual numbers may be much higher.

Reasons for suspected under-reporting of abuse include the shame frequently felt by victims, as well as the fact that police and prosecutors are ill-equipped to work with the elderly. Torres-Gil described elder abuse as “the hidden shame of the American family.”

Editorial

A larger question posed by Carl Pierson’s case may go unanswered. If Mr. Pierson is able to exercise the discretion involved in voting (and all indications are that he is), why does he have a guardian? If a guardian has been appointed because Division of Developmental Disabilities rules require a guardianship proceeding as a condition of providing services, shouldn’t that law be challenged first?

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