Arizona Probate Court and the Exploitation of Vulnerable Adults

January 01, 2011 (Press-News.org) Probate courts across the nation serve many important functions: they resolve cases concerning the disposition of property belonging to deceased persons, administer court-supervised trusts, and handle proceedings to create guardianships and conservatorships for minor children as well as incapacitated or incompetent adults. But, while judges and others involved usually have the best interests of individuals at heart, gaps in the system leave open the opportunity for exploitation.

Some states, like Arizona, have enacted specialized laws meant to provide an extra layer of protection for vulnerable adults who are particularly susceptible to abuses. These laws give some relief to vulnerable adults and their families. A federal investigation into elder abuse, however, has added to fears that current laws are inadequate in providing the oversight necessary to protect vulnerable adults in the courts.

The Federal Report

In October, the Government Accountability Office (GAO) released a report that uncovered instances of abuse in 45 states, including Arizona: some Arizona courts failed to order background checks or properly monitor those put in charge of an incapacitated adult. The Senate Special Committee on Aging requested the investigation after receiving what has been called a flood of complaints from people who suffered losses while under the protection of state courts. The GAO focused on cases in which a family member, agency, or private business was appointed as a guardian. In 20 cases, guardians appointed and approved by courts stole $5.4 million in assets from 158 incapacitated adults.

GAO investigators found that courts were unprepared to handle three specific oversight functions: failure in screening potential guardians for criminal convictions and significant financial problems, inadequately overseeing guardians after they have been appointed, and failure to keep lines of communication open between state courts and federal agencies (if a federal agency or state court uncovers impropriety by a court-appointed guardian, they rarely share that information with each other, which sometimes leaves avenues for abuse open).

Another problem uncovered in the GAO's report concerns the fee structure that commonly comes into play when guardian, conservator, or fiduciary claims are disputed. Often, the legal fees on every side are paid by the ward's estate. For example, if a family claims that a court-appointed guardian is exploiting the assets of a loved one, everyone's legal fees may be paid by the estate. By the end of these often-lengthy disputes, the estate can be completely drained.

Judges approve these fees, and rarely take measures to end the disputes early or stop the billing. The GAO report mirrors findings by The Arizona Republic that show that disputes involving vulnerable adults within the Maricopa County Probate Court have allowed exactly this type of fee structure to drain the assets of some vulnerable adults to pay fees for lawyers and private fiduciaries who serve as guardians. Some who have had to endure the exploitation of vulnerable adults outside of court feel re-victimized by probate courts that fail to meet their needs.

Protecting Vulnerable Adults

While the results of the GAO report are troubling, investigators said they could not determine whether the abuses were widespread. Still, lawmakers are paying attention, and some want to use the findings to push for additional training for guardians, judges, and others involved.

Arizona has long been at the forefront of legislative efforts to curb elder abuse: it was the first state to require private, for-profit fiduciaries to attend training, get a fingerprint background check and a credit check before being licensed, and subject to random audits. Yet, there are no such standards for relatives. Relatives appointed as fiduciaries are required to submit an annual report on the well-being of the ward as well as an accounting of the ward's finances; while an accounting office usually reviews the financial reports, Arizona has no system of oversight to ensure a ward is being well-cared for once a guardian has been appointed.

Arizona's comprehensive piece of legislation meant to address concerns about elder abuse in the state is the Adult Protective Services Act (APSA). APSA provides vulnerable adults protection from physical, emotional, and sexual abuse, as well as financial exploitation. It does this in a variety of ways, including provisions for the state Long Term Care Ombudsman Program to oversee complaints. Long Term Care Ombudsmen are specially trained to identify, investigate, and resolve neglect and abuse complaints made by or on the behalf of residents of long-term care facilities. Reporting and service provision guidelines for protective services workers are also part of APSA, as is the establishment of a registry of substantiated reports of abuse, neglect, and exploitation of vulnerable adults. Increased penalties for those who prey on the elderly or infirm are also a keystone of APSA. Since its inception in 1988, APSA has been hailed as a powerful shield for those particularly susceptible to abuse.

While it is clear APSA and similar initiatives in Arizona have done much to address elder abuse concerns, the GAO report indicates that there is room for improvement in Arizona and elsewhere. At the center of probate court is the assumption that fiduciaries are supposed to have the best interests of their wards at heart. As such, courts take fiduciary reports at face value, assuming they are in the best interests. But, until more oversight is provided, there will always be a window for exploitation of vulnerable adults.

Article provided by Plattner Verderame, P.C.
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