Arizona enacted the Adult Protective Services Act (“APSA”) to protect vulnerable and incapacitated adults from neglect, abuse or exploitation, of both a physical and financial nature. APSA allows vulnerable and incapacitated adults to seek remedies from certain bad acts and actors.
There are civil and criminal penalties for persons in a position of trust and confidence who financially exploit an incapacitated or vulnerable adult. Civil penalties can include actual damages and an amount up to two times the amount of actual damages. Actual damages might include the amount of monies and assets stolen or used without benefitting the vulnerable or incapacitated owner.
Additionally, a court may order a person who has violated these statutes to forfeit all or a portion of their inheritance from the vulnerable adult. In other words, a son who has been found to have improperly sold his mother’s house and subsequently used the proceeds of that sale to benefit himself, with no benefit to his mother, might be disgorged of both the sale proceeds as well as any inheritance he may have been entitled to.
A position of trust and confidence applies to persons who have assumed a duty to provide care to a vulnerable adult, a person who is in a fiduciary relationship with a vulnerable adult, and persons that are joint tenants or tenants in common with a vulnerable adult. Fiduciary relationships include individuals acting pursuant to a financial power of attorney, as well as those acting as trustee, successor trustee or even co-trustee of a trust.
A guardian or conservator of a vulnerable adult is required to report or cause a report to be made to the superior court within a forty-eight hour time frame if the guardian or conservator has a reasonable basis to believe that abuse or neglect of the adult or exploitation of the adult’s property has occurred. An agent holding a power of attorney for a vulnerable adult owes the same fiduciary duties as a guardian or conservator to a vulnerable adult.
In 2008, the Court of Appeals of Arizona found that a financial exploitation claim survives the death of an incapacitated person, just as a financial exploitation claim survives the death of a vulnerable adult. In re Estate of Wyttenbach, 219 Ariz. 120, 193 P.3d 814 (2008). A personal representative is permitted to bring a claim under APSA on behalf of the incapacitated or vulnerable adult.