Berk & Moskowitz, P.C.

Vulnerable and incapacitated adults and their assets receive special protections under Arizona law.  People who take advantage of vulnerable or incapacitated adults risk severe penalties, including statutory damages equal to three times the monetary injury caused and forfeiture of any interest in the adult’s estate.

For these statutes, a “’vulnerable adult’ means an individual who is eighteen years of age or older who is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment” and “’Incapacity’ means an impairment by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication or other cause to the extent that the person lacks sufficient understanding or capacity to make or communicate informed decisions concerning his person.” A.R.S. § 46-451(A)(5) and (10).

Pursuant to A.R.S. § 46-456(A), “[a] person who is in a position of trust and confidence to an incapacitated or vulnerable adult shall act for the benefit of that person to the same extent as a trustee.” In other words, the person has fiduciary duties and must protect and use the incapacitated or vulnerable adult’s assets solely for the benefit of the incapacitated or vulnerable adult. Further, A.R.S. § 46-456(B) states that “[a] person who is in a position of trust and confidence and who by intimidation or deception knowingly takes control, title, use or management of an incapacitated or vulnerable adult’s asset or property with the intent to permanently deprive that person of the asset or property is guilty of theft as provided in § 13-1802.” There are severe penalties for a person who violates these provisions.

Pursuant to A.R.S. § 46-456(C), “a person who violates subsection A or B of this section is subject to damages in a civil action brought by or on behalf of an incapacitated or vulnerable adult that equal up to three times the amount of the monetary damages.” Also, under A.R.S. § 46-456(D), “a person who violates subsection A or B of this section forfeits all benefits with respect to the estate of the deceased, incapacitated or vulnerable adult, including an intestate share, an elective share, an omitted spouse’s share, an omitted child’s share, a homestead allowance, an exempt property allowance and a family allowance. If the incapacitated or vulnerable adult died intestate, the decedent’s intestate estate passes as if the person who committed the violation disclaimed that person’s intestate share. “

For the purposes of these sections the following additional definitions apply:

1. “Deception” means that a person deceives an incapacitated or vulnerable adult by knowingly doing any of the following:

(a) Creating or confirming a false impression in an incapacitated or vulnerable adult’s mind.

(b) Failing to correct a false impression that the person is responsible for creating or confirming in an incapacitated or vulnerable adult’s mind.

(c) Making a promise to an incapacitated or vulnerable adult that the person does not intend to perform or that the person knows will not or cannot be performed. A person’s failure to perform a promise is not by itself sufficient proof that the person did not intend to perform the promise.

(d) Misrepresenting or concealing a material fact that relates to the terms of a contract or an agreement that the person enters into with the incapacitated or vulnerable adult or that relates to the existing or preexisting condition of any of the property involved in a contract or an agreement.

(e) Using any material misrepresentation, false pretense or false promise to induce, encourage or solicit an incapacitated or vulnerable adult to enter into a contract or an agreement.

2. “Intimidation” includes threatening to deprive an incapacitated or vulnerable adult of food, nutrition, shelter or necessary medication or medical treatment.

3. “Position of trust and confidence” means that a person is any of the following:

(a) One who has assumed a duty to provide care to the incapacitated or vulnerable adult.

(b) A joint tenant or a tenant in common with an incapacitated or vulnerable adult.

(c) One who is in a fiduciary relationship with an incapacitated or vulnerable adult including a de facto guardian or de facto conservator.

If you believe that someone has exploited or otherwise taken advantage of a vulnerable or incapacitated adult, or you have been accused of such misconduct, Berk & Moskowitz, P.C.’s probate lawyers can help.  Our elder law attorneys provide careful thorough analysis of financial exploitation and related cases.  Where necessary, we work with professionals, such as forensic accountants.