GeriLaw | Robert Fleming, Tucson elder law attorney, and colleagues

Alleging exploitation -- who pays?

Arizona has an especially strong law permitting punishment for abuse, neglect or exploitation of vulnerable adults. Once a finding has been made that a senior was abused, neglected or exploited, the penalties can be quite severe. They can include automatic imposition of treble damages (that is, three times the provable injury). If the defendant was an heir or named in the victim's will his or her inheritance can actually be forfeited. (You can look at Arizona's broad statutory authority at Arizona Revised Statutes section 46-455.)

That's good news for those trying to recover for abuse, neglect or exploitation. But there is another side to the strong Arizona law. It is increasingly common to see allegations of exploitation raised in all sorts of family disputes, and especially in will and trust contests. The result can be extensive and expensive legal investigations and proceedings.

A recent Arizona Court of Appeals (Division I) case illustrates the problem. When Victor Friedman died in Phoenix at the age of 91, he left a warring family, three different trusts, and a will. His will and his trusts almost completely disinherited his son Dennis and, after a small bequest to his sister Libby, left the bulk of his estate to his daughter Jo Ann.

Dennis Friedman was sure that his sister had taken advantage of their father, and he and his aunt Libby filed a probate proceeding in which they alleged that there had been exploitation. They asked that Jo Ann be disinherited as a consequence. After some initial legal skirmishing the family members all agreed that a "special administrator" could be appointed to look into the allegations, and that they would be bound by the special administrator's decision.

The special administrator investigated the background and decided that Jo Ann had behaved completely appropriately. She also questioned Dennis and Libby's motivations for filing the actions, and recommended dismissal of the litigation.

The probate judge granted the dismissal, and then noted that the special administrator had cost the estate $27,500 in legal and investigative fees. The judge ordered that Dennis and Libby's share of the trust estate should pay all those expenses.

Arizona's Court of Appeals (the intermediate appellate court--an appeal might still be taken to the Arizona Supreme Court) considered the case and this week sent the matter back to the probate judge for a follow-up determination. While the appellate court agreed that the cost of investigating allegations that turn out to be unfounded can be assessed against the person making the allegations, that result is not automatic. The Court of Appeals ruled that the cost of investigation must be paid out of the entire estate unless the probate judge finds that Dennis and Libby acted maliciously in promoting their claims of exploitation.

No doubt about it -- Arizona's powerful laws on abuse, neglect and exploitation can help right wrongs committed against the most vulnerable of adults. They can also be invoked without foundation, and incur significant costs for a family member or friend who turns out to be not just blameless, but exemplary. And that's not even the end of the issue; while the estate's (and Jo Ann's) potential liability for the $27,500 cost of the special administrator is being decided, there are presumably many thousands of dollars of legal fees and court costs being incurred by the lawyers on both sides of the question while they work out who is responsible for paying the disputed fee.

The case is In the Matter of the Estate of Friedman, decided February 12, 2008.

Robert B. Fleming
Fleming & Curti, PLC
Tucson, Arizona
www.elder-law.com
www.specialneedsalliance.com

Exploitation and abuse of elders

You might think that talk about exploitation and abuse of seniors is mostly just hand-wringing. A sampling of news articles--all from a single day--suggests otherwise.

The Lake County, Illinois, News-Sun reports that 49-year-old Geraldine Lopez and her 29-year-old daughter Kristen Glasper were arrested last week on charges that they had used an elderly man's Social Security number and personal information to take out $50,000 in loans in his name. According to the report, Lopez was working as a caretaker for the man when she collected the information. The pair used the proceeds to pay off debts, including Glasper's student loans.

A story in the Joliet, Illinois, Herald News describes the financial exploitation of Gladys Farrington. The culprits, convicted earlier this week, were former Joliet fire chief Joe Drick and his wife Cheri. A jury found that the Dricks befriended Ms. Farrington after seeing her en route to Mass at the Cathedral of Saint Raymond. The 83-year-old woman was then worth about $1.5 million; within a few months the Dricks had gotten her to sign a power of attorney and had used it to take about $200,000 of her money. How did they use the money? They bought inexpensive clothing, new windows for their "lavish" home, a $62,000 Cadillac Escalade, and paid off credit card and business debts.

The Springfield, Illinois, Journal Register reports that 34-year-old Maurice L. Graham, Jr., was arrested last weekend for taking $3,000 from an 85-year-old woman for landscaping work he did not perform. Graham worked for a landscaping company contacted by the woman to build a retaining wall; he convinced her that he should do the work himself, and that she should write him three blank checks for materials. He was unable to produce receipts for the amounts indicated on the checks.

Columbus, Ohio's, WTVM-TV is reporting on a complaint filed by Lori Lamb over the care provided to her 72-year-old mother at the Canterbury Health Center, a local nursing facility. According to Lamb, the facility smelled unclean and awful, and her demented mother was regularly bruised by falls during her six-year stay in the home. A spokesperson for the home explained that "we are in the process of conducting an internal investigation and at this point we have not been able to substantiate any of these alleged allegations."

Problems also appear in other countries. The Canadian Broadcasting Company reported yesterday that a Newfoundland nursing home fired a caretaker after she had been accused of sexually assaulting an elderly and incapacitated resident.

And London's Daily Mail reports on an investigation into the allegedly common practice of slipping sedatives into nursing home residents' food. In characteristically proper and restrained English, the Commission for Social Care Administration refers to the practice as "willful maladministration of medication." According to the Mail: "The 'chemical cosh' for confused and vulnerable people can make life easy for those who are looking after them. But it can also lead to a rapid decline in health and risk of death for the residents who are sedated."

These news stories are clearly anecdotal, but are they more than that? According to a 2005 study ("Elder Abuse Prevalence and Incidence") by the National Center on Elder Abuse, only about one in fourteen incidents of elder abuse or neglect comes to the attention of the authorities--and that is excluding the cases of self-neglect. Reporting of financial exploitation is even spottier, with an estimate that only one in 25 cases gets turned in to authorities. The same study estimates that "between 1 and 2 million Americans age 65 or over have been injured, exploited or otherwise mistreated by someone on whom they depended for care and protection."

The problem is real. The anticipated growth in the elderly population (as we Baby Boomers begin to age into dependence) can only make the statistics more compelling over time.

Robert B. Fleming
Fleming & Curti PLC
Tucson, Arizona
www.elder-law.com
www.specialneedsalliance.com