Berk & Moskowitz, P.C.

Arizona’s Adult Protective Services Act has broad coverage, far reaching remedies and allows for the recovery of substantial damages in many cases.  The Act protects vulnerable or incapacitated adults from abuse or financial exploitation.

But, the Arizona Court of Appeals has found that the damages recoverable under the Act do not include the “intrinsic or inherent value” of human life.  In the Estate of Winn v. Plaza Healthcare, Inc., the Estate brought a claim under the Adult Protective Services Act against the nursing home where Ms. Winn died.  The Estate alleged that the Defendant nursing home abused Ms. Winn in violation of the Act, thus causing her death.  Because there was no evidence that Ms. Winn suffered any physical pain or emotional distress or loss of earnings prior to her death, the Estate argued that it was entitled to recover for the “inherent or intrinsic value” of Ms. Winn’s life.  The trial court dismissed the claim, and the Arizona Court of Appeals affirmed.

The Court of Appeals explained that the Act “allows a vulnerable adult ‘whose life or health is being or has been endangered or injured by neglect, abuse or exploitation’ to file an action in superior court against certain persons or enterprises. If liability is established, the court may order ‘the payment of actual and consequential damages, as well as punitive damages, costs of suit and reasonable attorney fees, to those persons injured.’”  A.R.S. § 46-455(F)(4).  The Court noted that the issue was not whether there is some inherent value to human life because there certainly is; rather, the issue was whether the Act allowed the recovery for such loss.  It found that the Act did not allow for such recovery because such loss is not an “actual damage” recoverable under the Act.  While “actual damage” under the Act includes pre-death pain and suffering and other damages, because the legislature did not specifically include damages for death in the definition of damages in the Act, like it did in other laws, the Court concluded that damages for death are not recoverable in a claim under the Act.  Such damages could have been sought if the Estate had brought a claim for wrongful death under, for example, A.R.S. § 12-613.

If you anticipate a dispute or litigation regarding an estate, probate, will or trust, there are three important things that you should do to prepare.

Preserve the Testamentary Documents:  First and most importantly, it is crucial that you obtain and preserve the original last will and testament, trust and/or any other documents disposing of or transferring property.

Preserve Documents Showing Assets:  Second, you should obtain and keep copies of any records showing assets or income, such as bank and financial account statements, deeds, titles, stock certificates, insurance policies, promissory notes and any other records that may reveal property that is or should be part of the estate.

Hire an Experienced Estate Litigation and Probate Attorney:   There is no substitute for early advice from an experienced probate lawyer who regularly handles estate disputes and litigation.  Many people feel that they can handle an estate dispute on their own and hire an attorney too late, after crucial claims have been missed or rights lost. 

If you have questions regarding an estate, trust or probate dispute, contact the probate attorneys at Berk & Moskowitz, P.C.  We aggressively handle virtually all types of disputes.

If you believe that you have been wrongfully cut out of a will or a trust, there are things you can do.  Here is a sample of some of the claims you can investigate and pursue:

• Authenticity of the Will, Trust or amendment:  If the Will, Trust or amendment eliminating you was not actually signed by the person, you may be able to pursue a challenge.
• Testamentary Capacity:  If the person did not have mental capacity to understand what he/she was doing in signing the Will, Trust or amendment, it may be cancelled and disregarded.
• Undue Influence:  If the person was unduly influenced in signing the Will, Trust or amendment, it may be set-aside by the Court.
• Presumption of Undue Influence: If another person who was a family member or otherwise had a position of trust or confidence to the person signing the document and the other person was instrumental in having the document signed and benefited by the document, a presumption of undue influence may arise.  If so, the other person will have the burden of showing that the document was validly signed.

Again, these are just some of the grounds on which you may be able to challenge an estate plan document if you believe you have been wrongfully or inadvertently omitted.  Our law firm handles all types of will, trust, estate, property and inheritance disputes and litigation.  Call us for more information and to discuss your situation.

Powers of attorney are authorized by statute in Arizona.  A power of attorney is a written document whereby one person (the principal) gives authority to act to another person (the attorney in fact).  Powers of attorney may be specific (limited to a particular transaction or matter) or general. 

Powers of attorney may also be durable, meaning that the power granted continues even if the principal becomes disabled or incapacitated.  All powers of attorney are revocable, meaning they can be cancelled.

Problems may arise if the attorney in fact used deception or intimidation in order to obtain the power or the attorney in fact abuses the powers.  For example, there have been cases where the attorney in fact has used the power to make distributions of money or property to himself, even though the power did not specifically grant authority to do so, and there was no benefit to the principal.  An attorney in fact who misuses the power may be subject to claims for breach of fiduciary duty, among other claims.

Our firm handles all types of estate, probate and fiduciary related disputes.  If you or someone you know has a dispute over a will, trust, estate, probate or the granting or use of a power of attorney, call or email our firm.  Our lawyers give sound advice and aggressive representation.

When vulnerable or incapacitated adults need help most, they are exposed to financial exploitation.  Family, friends and caregivers sometimes take advantage of the situation and help themselves to the vulnerable adult’s money, property or other assets, sometimes without even being named to inherit anything upon the adult’s death.

In light of such situations, there are Arizona laws providing remedies for such exploitation.  Among other things, a person who obtains a vulnerable adult’s assets must use the property solely for the adult’s benefit, unless certain requirements are satisfied.  If there is a violation of the exploitation  laws, there are potentially severe penalties.

If you or a loved one believes that there has been financial exploitation or you have been accused of exploitation, contact us.  Our team of aggressive tenacious attorneys will help pursue or defend all types of exploitation claims and disputes.

On January 11, 2010, a Petition was filed to further amend Arizona’s Rules of Probate Procedure that went into effect on January 1, 2009.  The proposed amendments contain few substantive changes.  Among other things, the proposed amendments are intended to conform the Rules to several statutory changes, correct  terminology, change the types of documents that are “confidential”.

In her State of the Judiciary report on March 17, 2010, Hon. Rebecca White Berch, Chief Justice of the Arizona Supreme Court, announced two new initiatives related to the Arizona Probate Courts.

First, she has formed a new committee to “examine ways to streamline and improve monitoring for those for whom guardians or conservators have been appointed. The Committee’s work will help us find ways to protect the best interests of those who must rely on others for their well-being, and will help us serve families who seek assistance on behalf of a loved one.”

Second, in light of recent concerns regarding excessive fees by fiduciaries, “ the Court will form a committee to review the fees that are charged by those appointed to serve as guardians and fiduciaries.”

The Arizona Court of Appeals ruled in Beck v. Deem that even though the Affidavit for Transfer of Real Property was technically defective, the subsequent lender on the property did receive a valid lien.  

Olson died and left behind three adult children, Shannon, Sherry and Todd.  Ultimately,  Sherry decided that she wanted to receive one of the assets of the Estate, a home.  Shannon and Todd agreed to relinquish their interest in the property, but Shannon insisted on receiving $25,000 from Sherry in order to do so.  Sherry never paid Shannon the full $25,000, but still executed and recorded an Affidavit stating that, among other things, she was entitled to the property.  After recording the Affidavit, Sherry obtained a loan against the property.  A dispute arose as to whether the loan against the property was valid.

The Court held that the Affidavit was technically invalid.  But, since the lender did not know that the Affidavit was defective, its lien was nonetheless valid and it was entitled to enforce its deed of trust against the property.   The Court relied on Arizona statutes that entitles a transferee (including a lender) to rely on an Affidavit of Transfer when certain conditions are satisfied.  The Court further held that Shannon’s claim was against Sherry for the balance of the $25,000, rather than invalidating the loan.

In order to be enforced, a Last Will and Testament must comply with Arizona law.  Most importantly, it must be signed and must represent the true wishes of the person.  A Will may be set-aside where the Will did not comply with Arizona law, the person did not have testamentary capacity or was the product of undue influence.

Berk & Moskowitz, P.C. prosecutes and defends all types of Will contest and probate matters.