Posts Tagged ‘Adult Protective Services’

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.

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Guardian Of Estate Does Not Have Power To Revoke Trust

MAY 21, 2001 VOLUME 8, NUMBER 47

Ruth Chandler was 73 when she established her revocable trust in 1997. The New Jersey woman had no family, and so she named Summit Bank as trustee. She transferred about $1.7 million into the name of the trust. Three months later she revoked that trust and established a new one, this time naming her friends Charles Menagh and Earl Tiffany as trustees.

Summit Bank expressed concern about the possibility that Ms. Chandler might no longer be capable of making such a change in her estate plan. The bank filed a court action to determine whether Ms. Chandler could change her trust. After two months of negotiations Ms. Chandler and the bank agreed that Charles Menagh and the bank would serve together as co-trustees.

A year later Ms. Chandler’s mental and physical health began to decline even more seriously. Summit Bank filed a report with New Jersey’s Adult Protective Services office. After investigation that office determined that Ms. Chandler should have a guardian of both the person and property (what in Arizona would be called a guardian and conservator).

At a hearing on appointment of a guardian the bank indicated that it would decline to serve as guardian of the person because “we have had some problems with guardianships of the person.” Although several other interested persons had sought appointment on Ms. Chandler’s behalf, the judged decided to appoint the New Jersey Public Guardian to handle Ms. Chandler’s personal and financial affairs.

The Public Guardian decided that it would not be in Ms. Chandler’s best interests to have a guardian of her estate (conservator) and a trustee both charging fees to administer her assets. Over the bank’s objections the guardian revoked the trust and directed that all Ms. Chandler’s assets be transferred to it for future management.

Although the bank requested a hearing on whether the Public Guardian had authority to revoke Ms. Chandler’s trust, the guardianship judge simply upheld the Public Guardian’s decision. Summit Bank appealed, even as it began to transfer Ms. Chandler’s assets, now totaling over $2.4 million. The bank retained $100,000 of the trust as a “termination fee.”

The New Jersey Superior Court Appellate Division agreed with Summit Bank. The least restrictive involvement in her life would be to accommodate her wishes, said the appeals court, and the way to accomplish that would have been to appoint the Public Guardian as guardian, but to limit the office to controlling her health care, placement, and assets outside the trust. The guardianship order permitting revocation of the trust was reversed, and the Public Guardian instructed to return Ms. Chandler’s assets to the bank’s control. In the Matter of Chandler, March 13, 2001.

If the guardian had been able to show the court that it was in Ms. Chandler’s best interests to revoke her trust the judge could have ordered such a revocation, said the appellate court. Simply giving the guardian blanket authority to revoke trusts was too broad and did not help ensure Ms. Chandler’s guardianship would be the least restrictive possible.

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Professionals Must Report Abuse Of Vulnerable Adults

MAY 15, 2000 VOLUME 7, NUMBER 46

Physical, sexual, mental and emotional abuse of elderly and vulnerable adults is a growing problem not only in Arizona, but around the world. Such abuse is also a crime. Even the failure to report elder abuse may be a crime in some circumstances.

Arizona law particularly protects “vulnerable” adults. An adult is deemed vulnerable when he (or she) “is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment.” [Arizona Revised Statutes section 46-451(A)(10)]

Adult Protective Services, the Arizona state agency charged with responding to allegations of abuse, neglect and exploitation, reports that actual abuse appears to be less common than either neglect (including “self-neglect”) or financial exploitation. Still, the incidence of abuse is high and growing.

Who is abusing seniors? The classic profile of an abuser, according to experts, includes the following elements:

The abuser is usually a son of the victim. Abuse by strangers is relatively rare, and when it does occur is almost always committed by a caregiver.
The abuser is also usually unemployed and financially dependent on the victim. In fact, the most common term used to describe the individuals who become abusers is “lazy.”
In addition, the abuser frequently has a drug and/or alcohol problem, and may also be addicted to gambling.

Some professionals are required by Arizona law to report even suspicions about abuse, neglect and exploitation. Physicians, psychologists, dentists, social workers and police officers are all required to file reports whenever they have a “reasonable basis” to believe that abuse, neglect or exploitation has occurred. Failure to make a report is itself a misdemeanor, and could lead to loss of licensure or other penalties.

Reports of abuse (like reports of neglect and exploitation) can be filed with Adult Protective Services or the local police or sheriff’s department. The law requires those reports to be filed immediately by telephone or in person, and the initial report must be followed up with a written report within two working days.

In order to make reporting abuse, neglect and exploitation simpler Adult Protective Services has established a statewide toll-free telephone number. Initial telephone reports can be filed by calling APS at 1-877-767-2385. Those with hearing impairments can call a special toll-free number at 1-877-815-8390.

Arizona is not the only state with a toll-free, centralized reporting number for elder abuse. Contact information for other states can be located at the National Center on Elder Abuse website at www.gwjapan.com/NCEA/report/index.html.

Abuse is often difficult to detect. Symptoms of an abusive relationship often (but not always) include dependence on the abuser, “hovering” by the abuser, isolation of the victim from friends and family, recent changes in behavior and/or spending patterns, and general anxiety on the part of the victim.

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Will Contest Loses, But Friends Not Charged With Legal Fees

MARCH 8, 1999 VOLUME 6, NUMBER 36

Lavina Kessler was 99 years old when she died in 1996. The Washington State woman left an estate of $2.4 million, including several parcels of valuable real estate. She also left a series of five wills and an expensive will contest proceeding.

Ms. Kessler had known Frances and Thomas Trimm for fifty years. The Trimms, both in their eighties when Ms. Kessler died, had been neighbors and friends, and had helped her take care of her finances for many years. As Ms. Kessler’s eyesight dimmed and her health worsened, she came to rely more heavily on the Trimms. In fact, she signed a durable power of attorney naming Mrs. Trimm as her agent after she broke her hip in a fall in 1993. During a ten-year period, she wrote a series of wills leaving increasing shares of her estate to the Trimms.

When Mrs. Trimm found Ms. Kessler on the floor of her home one day, unable to get up or get help, her care needs became acute. Ms. Kessler refused to even consider moving to a nursing home, but the Trimms were unable to provide the care she needed. At about the same time Ms. Kessler’s doctor called Adult Protective Services, and another friend contacted her great nephew, Brian Davis, who lived in Idaho.

Mr. Davis and his wife Tami arrived in Washington two days after Ms. Kessler’s fall. They immediately began to make arrangements for her care, and to question the Trimms’ handling of her finances. Two days after that, Tami Davis called Ms. Kessler’s long-time attorney Lawrence Warren, telling him that Ms. Kessler was suspicious of the Trimms and wanted to change her power of attorney.

Attorney Warren insisted on talking to Ms. Kessler directly. He met with her that same day and again the next day, but found her to be too confused to sign a new power of attorney or to change her will. After he declined to oversee the signing of the new documents, he was never asked to visit with Ms. Kessler again.

Ten days later Tami Davis contacted Washington attorney John Hertog and asked him to meet with Ms. Kessler. After two meetings, he too concluded that she was too confused to sign new documents.

Over the next two weeks, the Davises initiated proceedings to be appointed as Ms. Kessler’s guardian and conservator. Because of the possibility of a will contest, and allegations by the Davises against the Trimms, a professional, independent fiduciary was appointed.

Almost exactly three months after her initial fall and the arrival of her great-nephew, Ms. Kessler finally signed a new will disinheriting the Trimms altogether, and leaving some of her real property to the Davises. The signing ceremony was videotaped, and revealed that Ms. Kessler was at least somewhat confused. She died two months after signing the new will.

Mr. and Mrs. Trimm contested the new will. After a trial, the judge determined that they had not shown sufficient basis to challenge the validity of the will, and denied their claims. They were ordered to pay costs and attorney’s fees in the total amount of $346,949.89. The Trimms appealed to the Washington Court of Appeals.

After detailing the history of Lavina Kessler’s confusion and the contents of the videotape of her will signing, the Court of Appeals concluded that there was sufficient evidence to uphold the trial judge’s determination that she was competent when she signed the will disinheriting the Trimms. But the appellate judges also decided that there was enough merit to the Trimms’ position that they should not be forced to pay the estate’s fees and costs. The result: while the Trimms’ contest of Ms. Kessler’s will was unsuccessful, they were not required to pay the legal fees for bringing their lawsuit. The bulk of her estate will now go to Brian and Tami Davis. Estate of Kessler, March 1, 1999.

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Investigations of Abuse, Neglect and Exploitation

JULY 3, 1995 VOLUME 3, NUMBER 1

[Last issue we described the duty to report abuse, neglect and exploitation. This second part on the subject discusses what happens when a report is filed.]

Adult Protective Services has a powerful mandate to investigate complaints, and has extraordinary authority to subpoena bank and medical records, to look at the perpetrators financial affairs. APS can even gain access to victims even if they refuse to consent to contact. The name of the referring party, the information gathered and the results of APS evaluations are ordinarily kept private, though they may be revealed in court proceedings undertaken to protect the victim from further abuse or to regain assets.

Despite the power of APS and the strong statutes, abuse, neglect and exploitation are wide-spread; the incidence of problems seems to be growing. There are a number of reasons for this:

  • Prosecutors do not place a high priority on elder abuse. With complicated relationships and transactions, they are difficult to prosecute.
  • APS is under funded. Once involved, they may be zealous. Unfortunately, they do not get involved often enough.
  • Perpetrators are often judgment-proof. Individuals who take advantage of the frail elderly tend to have no other sources of income and may have expensive habits to support. Consequently, it is difficult to get private attorneys involved.
  • Elderly victims often make poor witnesses. Prosecutors are concerned that they may not remember specific details, or that they not survive to the date of trial. Many remain susceptible to manipulation by their abusers even after discovery.

More and more often, authorities are seeing repeat abusers. Repeaters are even more clever and dangerous, since they have seen the types of behaviors that result in referrals and the limitations to the powers of government to prevent or remedy abuses.

Abuse, neglect and exploitation are growing problems in our society. There are frustrations and difficulties with the system, but there are powerful tools available. Many who witness abuse, neglect or exploitation or who suspect that it is occurring will have a legal obligation to report their suspicions.

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