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Overview of Arizona Elder Abuse Law

Sep 27th, 2014 | By | Category: Financial Elder Abuse

Many seniors move to Arizona for the great climate.  Real Estate Developers are busy loading up on the senior housing product and developing senior care facilities to handle the growing aging population.  But what happens when caregivers and others in a position of trust abuse the Arizona elderly?  This is where Vondran Legal steps in.

az elder abuse law firm

What are some of the most common types of elder abuse?

It is estimated that there are millions of acts of elder abuse in the United States in each calendar year.  Many acts go unreported due to several different factors (for one, the elder may feel stupid, another may be memory problems, a third problem is that ofter then Defendant can be a family member or a “loved-one”).

While there are many different things a loved one, caretaker, friend, relative, or trusted professional can do to injure an elderly person, here are a few of the most common acts constituting elder abuse in AZ:

  • Committing acts of financial elder abuse (taking money or property belonging to an elder in bad faith)
  • Physical caretakers that allow bedsores to develop
  • Neglecting the needs of an elder under medical care
  • Physically beating or assaulting a vulnerable adult or senior citizen

What are the to 20 best cities for elders to live and retire in Arizona?

According to some articles, many elderly people from Canada, Minnesota, Ohio, Michigan, and other eastern states (such as New York, Boston and Florida) are moving to the valley of the sun.  Popular destinations include:

  1. City of Scottsdale
  2. Tucson
  3. Benson, Arizona
  4. Town of Prescott Valley
  5. City of Nogales
  6. City of Sierra Vista
  7. Camp Verde, AZ
  8. Wickenburg
  9. Sedona
  10. Cave Creek
  11. Cottonwood
  12. City of Yuma
  13. Town of Florence
  14. City of Kingman
  15. Town of Sahuarita
  16. Phoenix
  17. Buckeye
  18. Goodyear
  19. Peoria
  20. Payson

Check her for more information on relocation to AZ and great Arizona towns and cities for seniors.

Arizona Elder Abuse Laws

The court in Davis v. Zlatos (Ariz. Ct. App. 2005) 211 Ariz. 519, 524 [123 P.3d 1156, 1161] described Arizona’s elder abuse laws (“APSA”):
“In 1988, the legislature determined that elder abuse in Arizona was a serious problem justifying legislative intervention and enacted the APSA, which criminalized abuse of an incapacitated or vulnerable adult, designating elder abuse a class 5 felony. Denton v. Superior Court, 190 Ariz. 152, 155, 945 P.2d 1283, 1286 (1997) (“The legislature’s intent and the policy behind the elder abuse statute are clear. Arizona has a substantial population of elderly people, and the legislature was concerned about elder abuse.”). The next year the legislature amended the statute to create a statutory civil cause of action for elder abuse.”
In Estate of McGill ex rel. McGill v. Albrecht (2002) 203 Ariz. 525, 527 [57 P.3d 384, 386], the Court discussed the Arizoan “Adult Protective Services Act:”
Adopted in 1989, the civil version of APSA was intended to create a statutory civil cause of action. The legislature created this cause of action with the following words:
“An incapacitated or vulnerable adult whose life or health is being or has been endangered or injured by neglect, abuse or exploitation may file an action in superior court against any person or enterprise that has been employed to provide care, [or] that has assumed a legal duty to provide care”
A.R.S. § 46–455(B). Incapacitated adults include those suffering from
“an impairment by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, [or] advanced age to the extent that the person lacks sufficient understanding or capacity to make or communicate informed decisions concerning his [or her] person.

Arizona elder abuse statutes can also be found in A.R.S. 13-3623 which defines abuse.  The law in AZ basically protects adults over 18 who cannot protect themselves due to a mental or physical impairment.  Some basic definitions you need to know include:

1. “Emotional abuse” means a pattern of ridiculing or demeaning a vulnerable adult, making derogatory remarks to a vulnerable adult, verbally harassing a vulnerable adult or threatening to inflict physical or emotional harm on a vulnerable adult.
2. “Physical injury” means the impairment of physical condition and includes any skin bruising, pressure sores, bleeding, failure to thrive, malnutrition, dehydration, burns, fracture of any bone, subdural hematoma, soft tissue swelling, injury to any internal organ or any physical condition that imperils health or welfare.
3. “Serious physical injury” means physical injury that creates a reasonable risk of death or that causes serious or permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb.
4.   “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.
5. “Vulnerable adult” means an individual who is over 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.  A.R.S. § 46–451(A)(5) and (10).

See Davis v. Zlatos (Ariz. Ct. App. 2005) 211 Ariz. 519, 524-25 [123 P.3d 1156, 1161-62].

What is the burden of proof in a Arizona elder abuse civil lawsuit?

The burden of proof is a preponderance of the evidence. A.R.S. §§ 46–455(L), 456(E). Subsection A requires that a person “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 pursuant to title 14, chapter 7, article 3 [Section 14–7301 et seq.].” A.R.S. § 46–456(A).
Under subsection B, criminal and civil liability exists if 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.” A.R.S. § 46–456(B). The common threshold elements of the two subsections are “a position of trust and confidence” with “an incapacitated or vulnerable adult.” In this case, the trial court specifically found that Saenz was in a position of trust and confidence.  See Davis v. Zlatos (Ariz. Ct. App. 2005) 211 Ariz. 519, 524 [123 P.3d 1156, 1161].

What types of damages are available in a Arizona elder abuse case?

Generally speaking you can seek to recover:

  1. Actual damages (aka compensatory damages)
  2. Treble damages (up to three times the actual damages)
  3. Pain and suffering
  4. Punitive damages
  5. Cost of suit
  6. Reasonable attorney fees
  7. Other damages applicable to the case

These items of damages were discussed in Matter of Guardianship/Conservatorship of Denton (1997) 190 Ariz. 152, 155 [945 P.2d 1283, 1286]

“We believe the plain wording of A.R.S. § 46–455 allows the trial court to award damages for pain and suffering. If the trial court finds liability under this statute, it may order the tortfeasor to pay “actual and consequential damages, as well as punitive damages, costs of suit and reasonable attorney fees, to those persons injured by the conduct described in this section.” A.R.S. § 46–455(F)(4). Actual damages are synonymous with compensatory damages. Compensatory damages include damages for pain and suffering. Thus, actual damages include damages for pain and suffering, and the elder abuse statute affirmatively permits the trial judge to award such damages.”
The court continued:
“The legislature’s intent and the policy behind the elder abuse statute are clear. Arizona has a substantial population of elderly people, and the legislature was concerned about elder abuse. In civil actions for elder abuse, pain and suffering may be the only compensable damages the victim may recover. Because incapacitated or vulnerable adults are not employed, they cannot recover damages for lost earnings or diminished earning capacity. Because incapacitated or vulnerable adults generally have Medicare, Medicaid coverage, or other insurance, they may not recover for medical expenses. Property damage is generally not an issue in elder abuse cases. As a result, the most likely form of damages recoverable in these cases are for pain and suffering. See generally Susan J. Hemp, Note, The Right To A Remedy: When Should an Abused Nursing Home Resident Sue? 2 Elder L.J. 195, 214 (Fall, 1994).”
Under the Arizona statutes, damages of up to three times the amount of the monetary damages may be established under either A.R.S. § 46–456(A),(B), or (C).

Can a survivor of an elder abuse victim recover pain and suffering when a elder abuse Plaintiff dies?

Probably so.  There is case law that support this position.  This is what happened in the case cited above (Matter of Guardianship case).  The Plaintiff died while the lawsuit was pending.  The Defendants filed motion to dismiss the pain and suffering request.  The trial court granted the motion, but the court reversed on appeal.  Here is the relevant language pulled from Arizona case law:

“The legislature intended to provide victims of elder abuse or their representatives with the ability to recover damages for pain and suffering even if the victim dies prior to judgment. This intent is evident from the plain words and the underlying policy of the elder abuse statute. We hold that representatives of elder abuse victims may recover damages for pain and suffering endured by the victims, notwithstanding the death of the victims.”  See Matter of Guardianship/Conservatorship of Denton (1997) 190 Ariz. 152, 157 [945 P.2d 1283, 1288].

What other types of causes of action might be brought along with an elder abuse claim?

Sometimes there are other things to sue for where an elderly citizen is involved.  These possible claims include:
  • Breach of Contract
  • Breach of Fiduciary Duty
  • Negligence
  • Fraud
  • Constructive Fraud
  • Deceit

Adult financial abuse can also invoke criminal penalties, including being charged with a felony.

Arizona Elder Abuse Resources

1.  Arizona Adult Protective Services (APS)
2.  Arizona elder abuse guide
3.  State elder abuse hotlines
4.  Excellent legal review of financial elder abuse cases involving real estate

Contact an Elder Abuse Attorney

Our civil litigation practice can help you recover for monetary damages due to elder abuse including financial elder abuse in Phoenix, Scottsdale, Paradise Valley, Sun City, Prescott, Flagstaff, Tucson, and all other towns, cities and Counties in Arizona. Call our elder abuse legal team at (877) 276-5084 or fill out the form below. We fight for very dime in personal injury cases and we don’t make a dime until we win your case.  We are able to meet you at your place our ours, and all telephone consultations are free.

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