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Visiting A Loved One During A Pandemic

 

People hit the hardest by this pandemic, both by contracting Covid-19 and also emotionally, are those who live in long-term care facilities. We have heard through multiple outlets just how hard these facilities have been hit with illness and death. The other side of this is the impact on the residents’ well-being. I have had several clients who have helped their parents move out of a facility and back home because their parents were becoming so depressed. Others have had to go into a facility during this time, which is really scary during a pandemic like this when you don’t know when you will be able to see them again.

In Arizona, these facilities have not allowed outside visitors since March; that is almost six months as of the date of this post. I myself have thought I cannot forgo seeing my granddaughter for an indefinite period of time; which could be months or longer. I represent court-appointed guardians whose obligations include visiting with the protected person. What should families do and how do you make decisions?

The Center for Medicare and Medicaid Services (CMS) has issued an FAQs to help families and facilities make decisions. Click HERE to read through these frequently asked questions.

Here’s what CMS has to say about when facilities should consider opening to visitors. CMS does not recommend re-opening facilities to visitors (except for compassionate care situations) until phase three when the following guidelines have been met:
• There have been no new nursing home onset COVID-19 cases in the nursing home for 28 days (through phases one and two);
• The nursing home is not experiencing staff shortages;
• The nursing home has adequate supplies of personal protective equipment and essential cleaning and disinfection supplies to care for residents;
• The nursing home has adequate access to testing for COVID-19; and
• Referral hospital(s) have bed capacity on wards and intensive care units.

CMS recognizes that there are compassionate care situations in which visitation must take place. These can be end of life related visits or someone adjusting to the move to a new facility or a resident who has had a family member pass away.

CMS also offers guidance and ideas for visits once there is a planned re-opening.
CMS encourages facilities to create safe spaces for these visits. Ask your facility what their plan is for visitation. The heat in Arizona makes the simple answers of moving the visit outside or doing a window visit very difficult; so they will have to get creative. Still, CMS suggests that risk can be reduced by limiting the number of visitors or setting up appointments in which a safe space can be arranged. The facility will likely screen you for a fever and ask you questions before anyone can be admitted in. The visit may not yet include hugs or contact and social distance may still be required.

In saying this, we’d like you to remember there is more than just in-person visiting. We can support our loved ones in many other ways. My sister has been in the hospital for a month or more at a time with her daughter who has Leukemia that requires in-patient chemo. Only one parent is allowed in at a time and no one else can visit. As a result, my sister is isolated for extended periods of time like the residents in the facility. This CDC pamphlet, Supporting Your Loved One in a Long-Term Care Facility gave me some good ideas for my sister’s and niece’s situation. There are some creative ideas for care packages, intercom dedications, and visuals to express caring. Click HERE to view the article and get some ideas for your loved ones!

Best wishes to you and your family during this time. Take care.

Written by: Jennifer Kupiszewski, Esq.

Need A Birthday Gift For Your 18 Year Old?

Best 18th birthday gift? A healthcare power of attorney!

I know this may sound like the most depressing gift, but please don’t stop reading! Stick with me and I think you will agree. And a bonus, it’s free.

A Healthcare Power of Attorney is the document that allows an adult to choose who will make medical decisions for them if they cannot. Your 18-year-old may not be the best decision maker, but they can probably make their own medical decisions. They can ask questions of their doctor, seek additional information, weigh options and they are likely healthy. If you are just thinking about today, it seems unnecessary. But it is not about today, it’s about what happens when the unexpected accident or illness strikes a family.  The most common event I see is a parent needing a guardianship because their adult child was in a car accident. This is not surprising given the fact that car accidents are one of the leading causes of injury in the United States.

More times than I can count, parents come to my office because their adult child has been in a serious car accident and unable to communicate. The most common reason the person is unable to communicate is because they suffered a brain injury during the accident.  The parents have been able to continue making decisions for the child based on the surrogate decision maker statutes. This law allows a parent of the patient to make medical decisions if the patient cannot make or communicate healthcare decisions. Sometimes issues come up during the hospitalization that require the appointment of guardian. Surrogate decision maker statutes do not include handling all the needs that may come up, such as signing contracts for long term care facilities or making decisions on patient discharge.

If the person is transferring to a rehabilitation center or needs a decision maker on a long-term basis once they are discharged, the medical providers will often request that the parents seek guardianship so that they have the legal authority to make decisions on an on-going basis.

The hospital is planning for discharge and they inform the family that they will need to obtain legal authority to continue making decisions for their injured adult child. Even if the prognosis is good for recovery, a brain injury can take months or years for recovery, so a long-term medical decision maker is needed.

This is when the family comes to see us. They are distraught over the tragedy and overwhelmed by the change in their lives. Now they are going to court to obtain guardianship over their adult child. This means filing a petition with the court (so much paperwork), getting the adult child appointed an attorney, personally serving them, being interviewed by a court investigator, and attending a court hearing. This added stress is not what they need. And it is expensive.

This is the heartbreak I see in my practice. The family might have avoided the need for a guardian and the stress and expense of a court process if their adult child had a Healthcare Power of Attorney (“HCPOA”). If the HCPOA is properly drafted they could make those medical decisions, as they would be the nominated agent to do so.

HCPOA is important to me because when my kids were younger, we were struck by an impaired driver and my fourteen-year-old son suffered a traumatic brain injury. Don’t worry he is doing awesome now, graduated from ASU and is a teacher! Had he been an adult at the time I would have had to go through the Court, however, because he was a minor, I was able to make the medical decisions for him. Unfortunately, I have watched other families have to go through the Court because their children were adults that did not have a HCPOA. Having this unexpected tragedy occur, I decided when my kids turned 18, I would give them the gift of a HCPOA.  As you can imagine, when I presented them with their gift they groaned and rolled their eyes a little, but eventually they came around, realizing it is an amazing gift for them and for their parents.

Having the HCPOA ensures that if something happens to your adult child, you can take care of them immediately and long term. It allows the family to focus on the person injured or impaired and to not be distracted with the expense and process of having to seek guardianship through the court.

As I mentioned, it is free to create your own HCPOA! The Arizona Attorney General’s website has a free Lifecare Planning Packet, which includes all of the documents you need. CLICK HERE to visit the Arizona Attorney General’s website.

Congratulations on your child turning 18 and give them the gift of planning and protection!

Written by: Jennifer Kupiszewski, Esq.

Why Would A Minor Need A Conservatorship?

This is a question we get often, and our family is a good example of why one might be necessary. My kids and I were struck by an impaired driver in 2002. It was a horrible time. They both suffered traumatic brain injuries as well as many other injuries. They ended up receiving an insurance settlement from our uninsured motorist coverage. If you don’t have uninsured motorist coverage, I will take this moment to let you know that I highly recommend you consider getting some. In our case the impaired driver was driving on a suspended license and had no insurance. Therefore, all of the insurance proceeds came from our underinsured motorists’ coverage. Without it, there would have been no additional funds to help them.

I was appointed by the Court as their conservator while they were minors. The kids are grown now and doing really great. Both have graduated from college and are working in their chosen professions, so we have a happy ending. Admittedly, getting there was a long and difficult road. Here is what I would have wanted to know about minor conservatorships when I was getting appointed as one.

A conservatorship is a protective proceeding to protect, or “conserve,” a person’s money and property if the person is unable to manage their own assets and those assets are at risk of waste or dissipation. A minor is legally incapacitated and cannot manage their own affairs. A minor is a dependent of their parent and is not required to support his or herself until  age 18. Therefore, if a minor receives an inheritance or personal injury settlement those funds must be placed in a conservatorship monitored by the court. When the minor turns 18 he or she can access their settlement funds. A few basics about how this works.

The most common situations a minor conservatorship is needed are: Inheritance such as, life insurance or a distribution in a probate matter.
A settlement from a personal injury or wrongful death case.

How Is a Conservator Appointed?
You have to file a petition with the Superior Court requesting to be appointed as the conservator. The petition must tell the Court who needs a conservator (the proposed protected person ie. the minor), why the appointment is necessary, what money or property is at risk and who is requesting to be appointed. If it is in the result of a legal settlement, the insurance company may provide a lawyer to set up the conservatorship. On the other hand, if it is from a probate or life insurance inheritance then the estate’s personal representative or the life insurance company will direct the parent to set up a conservatorship.

The Court case:
The case is initiated when the lawyer for the family files a petition with the court for the appointment of a conservator. After the filing of the petition, the Court will set a date and time for a hearing.  The petition must tell the court who needs a conservator, who is asking to be appointed, their contact information and why a conservator is needed. Just like any other court case persons who may be affected by the appointment or who may have priority for appointment are entitled to notice of the legal action.
Who may be the conservator? Parents have priority for appointment. Although, the appointment of a parent is not required. Even though a parent has priority they must still be a qualified conservator. For example, if the parent has a criminal history, they may not be able to serve as the minor’s conservator.
What is notice and who gets it? A person entitled to notice must receive a copy of the notice of hearing and the petition that was filed. For a case involving a minor, both parents of the minor must be notified of the hearing.  If the minor is over the age of fourteen, he or she must also be provided with notice of the hearing.  They may also have a say in who will be the conservator.
What will happen at the hearing? The Court will take testimony about why the conservatorship is necessary, if the nominated conservator is the right person to serve, and what the nominated conservator intends to do with the minor’s funds/assets until the minor reaches the age of majority.
What happens after the hearing? If a conservator is appointed the court will sign its order approving the appointment. Then the conservator must get their letters issued from the Clerk of the Court.

A few more questions:
If the inheritance was left to the minor as a Trust asset is a conservatorship needed? Probably not, so long as there is a trustee and the assets are held in trust for the minor’s benefit.
Can the money be invested? Yes, the conservator can invest the funds or settlement funds may be placed into a structured settlement to increase payments over time.
Is it possible to use some funds during the child’s minority? Yes, but usually only for needs above and beyond the parents’ obligation to support the child. A good example is a vehicle. Parents have to provide for their child’s daily support, but they are not required to provide a car to the minor. The settlement funds were likely put to in a restricted account from which no withdrawals can be made without court approval and a request will need to be made to the court to release the funds to make the purchase.
If the child has special needs, can you obtain the settlement and still maintain benefits? Absolutely, the settlement can be placed into a special needs trust so the minor can receive government benefits and have these additional funds to meet needs not covered by the government benefits.
What happens when the minor turns 18? If the settlement is not in a structured settlement or a special needs trust it is pretty simple. A petition to release the funds is filed with the court, a hearing is held, and the Judge wishes the minor the best.
I read that a conservator must file an inventory, budget and accounting. Is that the same for a minor conservatorship? There are many requirements for a conservator of an adult that may be waived in the case of a minor.

I hope this was helpful. We have more information on our website, our blog and YouTube Channel.

Written by: Jennifer Kupiszewski, Esq.

Be Prepared! Pack A Ready-To-Go Package For Potential Hospital Stays

Make Your Own Healthcare Go Package!

There has been a lot of talk about estate planning and the increased need for documents such as a Healthcare Power of Attorney during the Covid-19 crisis. Less than half of all Americans have done their estate planning. But you are one of them! You’ve done your estate plan and you feel prepared, now what?

First the persons nominated in your documents to serve on your behalf need to know about the documents and where to find them. Having a plan doesn’t do much good if no one knows about and cannot access it. If you are too ill to tell anyone about the plan, they can’t use your planning to protect you.
This is an easy problem to fix. You can put together a “go package” of your essential documents. This package should be easily accessible. In other words, don’t lock it in your safe or put it in your safety deposit box.

The “Hospital Go” package should have the following:
• Driver’s license (if your address is not updated you’ll need to have it stated elsewhere in your package);
• Social Security card or have the number documented somewhere in the package;
• Healthcare Power of Attorney and Living Will;
• Pictures of your current prescription labels, or a list of your medications and any supplements you take;
• A list of your treating physicians with contact information;
• A list of any medication allergies;
• A list of who you want to be able to contact you while you are in the hospital along with their contact information;
• Key medical history such as chronic conditions, prior surgeries and medical devices you have; 
• A copy of your health insurance cards such as your Medicare card, any Medicare Supplemental insurance, and Part D prescription coverage; 
• If you have Long-Term care insurance a copy of the policy or at least the policy number and company contact information; and
• Your cell phone including an extra-long charging cord (My husband and I learned during his last hospital stay the outlet was far from his hospital bed and so without a long cord the phone was out of his reach).

Where should you keep this?
It depends on your preference. It could be kept in a binder or envelope. Or you could prepare a digital copy on a thumbdrive that you keep on your keychain. If you go the digital route make sure there is note in your wallet that the information is on the thumbdrive. Label the package so healthcare providers will recognize it.

We hope this progressive planning will make your potential hospital admission go much more smoothly and take the stress off of you and your family. With a go package such as this, you and others don’t need to search around to make sure you have all this information while you are experiencing a health crisis. The best time to prepare for an illness is when you feel well.  If you’re already at the hospital, someone can pick it up and bring it where it’s needed. Let your loved ones and decision makers know where you keep the go package in the event you are unable to take it with you. If still need an estate plan or if you need to update your plan, Emily B. Kile in our firm can assist you. If you have questions we have answers; you can call us at (480) 348-1590 or make an appointment online. We’re here for you.

Written by: Jennifer Kupiszewski, Esq.

My Loved One Is Getting A Settlement, Now What?

 

Settlements can be received from a variety of claims. More prevalent claims we see are from Personal Injury Claims and Medical Malpractice Claims. 

We have the honor of helping families and attorneys determine how to try and ensure that the receipt of a personal injury or medical malpractice award does not result in the loss of public benefits, such as Arizona Long Term care (ALTCS) benefits and Supplemental Security Income (SSI).  Many individuals who have been impacted by an accident or medical malpractice event are also receiving benefits from ALTCS or SSI to cover medical expenses, long term care costs and loss of income.  These two specific programs are available when someone has low income, low assets and meets the medical criteria.  The receipt of settlement money may mean the loss of these important benefits.

It’s important to determine whether the amount of money being received is sufficient to cover the health care and caregiving needs of the injured party.  If the funds are sufficient to meet all of the needs of the injured party, there may be nothing else to do.  However, for the vast majority of people, the costs of care far exceed the amount of money being received.  Remember to do your evaluation on the net amount that will be available, I.E. the amount after all of the medical liens are paid, outstanding debts are paid, attorneys’ fees and costs and any court costs are paid. Next, try and determine if there are immediate costs to be covered, such as the purchase of a handicap accessible van or other transportation, home accommodations, housing, assistive devices and other needs. 

A Special Needs Trust might be the vehicle needed to hold the funds once immediate expenses are paid and to try to ensure that the government benefits remain available.  These trusts are often referred to as “First Party Special Needs Trusts.”  Some of the hallmarks of these trusts are: they are funded with money of the injured party; the Trustee must follow specific rules in making distributions to or for the benefit of the injured party; and any funds remaining in the trust at the death of the beneficiary must be paid back to ALTCS and/or any other Medicaid programs that provided care. This must all be done before the funds can be used for any other purpose or distributed to other beneficiaries.

It’s important to remember that the money in the trust is for the sole benefit of the injured party.  For example, the trust can pay for transportation for the injured party, his/her share of the household expenses, his/her computer, phone, education, vocational training, funeral/cremation, entertainment and in some cases the vacation costs of the injured party and one other person if the injured party cannot travel alone.  These are the most common uses of a special needs trust.

As with all things legal, it’s complicated.  But we are here to help!

Written by: Jennifer Kupiszewski, Esq.

What Is Guardianship Litigation?

What happens if a propose protected person disagrees with my guardianship action?

The person who you claim needs a guardian has the right to contest your assertion and they also have the right to a trial. Other people who may disagree are family members who also have a priority for appointment as the person’s guardian. The threshold question for the Court in a Guardianship is, does the proposed protected person need a guardian? If the answer is n”o” the case is over. If the answer is “yes” that means there is sufficient evidence that the person is incapacitated, and the next question for the Court is who should be appointed as guardian? 

Disagreements Over Whether the Person Needs A Guardian/Conservator:
The Court must first find that the proposed protected person who is alleged to be incapacitated is in need of a guardian.
A guardianship action is a legal proceeding to take away an adult’s constitutional right to make decisions about their person. The burden is very high to prove a person needs a guardian because it is a constitutional matter. We’re all familiar with the burden of proof in a criminal matter, beyond a reasonable doubt. The burden in a guardianship case is the next highest burden of proof in our system, clear and convincing evidence. Practically speaking, this means if it is not clear the person is incapacitated you won’t be to prove your case.
Since this is a constitutional matter, the proposed protected person will be appointed an attorney like they would in a criminal case. If you are seeking to become the guardian/conservator of your loved one such as a parent, brother, sister or adult child and that loved one does not agree that they need a guardian/conservator, you will have to prove your case by clear and convincing evidence. This could mean a trial, expert witnesses, subpoenas for witnesses and document discovery. At trial there will be testimony potentially from physicians, other professionals, the person seeking to become the guardian/conservator, the person who allegedly needs a guardian/conservator, friends, and family.

Disagreements Over Who Should be Appointed:
Sometimes it is clear the person needs a guardian/conservator, but the alleged incapacitated person or their family do not agree on who should be appointed. The statutes have priorities for appointment of a guardian. The priorities for relatives are:
1. A person nominated by the proposed protected person.
2. The person’s spouse.
3. An adult child.
4. The person’s parent.
The Court can also appoint a person who is not in priority if there is good cause to do so.
The most common situations in which disagreement over who should be appointed are:
1. Divorced or unmarried parents who both want to be the sole guardian for their child.
2. Siblings who do not agree on what is best for their parents.
3. A second marriage when the current spouse and the step-children do not agree.

Carefully weighing the pros and cons of initiating a guardianship action is critical. The pros are protection and safety of your loved one. But there are also cons. There are possible financial risks to you, if you do not succeed with the appointment of a guardian you may be responsible for the attorney’s fees and costs. There are emotional risks that your loved one may be angry with your attempt to take control of their life and may not appreciate that it was done out of love and a desire to protect them. It is important to evaluate if the time is right to file or if there are other less intrusive options.

The decision to seek guardianship over a loved one is a complicated issue that involves assessing the risks involved and the needs of the person. It is important to evaluate both the likelihood of success and potential alternative legal options. We can help you assess your case to determine the best course of action that meets your goals to protect your loved one. The Kile & Kupiszewski Law Firm has successfully litigated and resolved many guardianship and conservatorship cases. Call us today to make an appointment at (480) 348-1590, or book an appointment online. Best wishes to you and your family.

Written by: Jennifer Kupiszewski, Esq.

The Conservatorship Process In A Nutshell

 

A conservatorship is a protective proceeding to protect or “conserve” a person’s money and property if said person is unable to manage their own assets and those assets are at risk of waste or dissipation. A person might be unable to manage their own finances if they are an incapacitated adult or a minor child.

The most common reasons a conservatorship is needed are:
For a minor, a conservatorship may be required if they receive an inheritance or a settlement from a personal injury case.
For an adult, a conservatorship may be needed if they are no longer able to make reasonable decisions for their financial affairs due to physical or mental decline and impairment. 

How Is a Conservator Appointed?
For any conservatorship you must to file a petition with the Superior Court requesting to be appointed as the conservator. The petition must tell the Court who needs a conservator (the proposed protected person), why the appointment is necessary, what money or property is at risk and who is requesting to be appointed.

Minor conservatorships:
After the filing of the petition, the Court will set a date and time for a hearing. 
Just like any other court case, persons who may be affected by the appointment or who may have priority for appointment are entitled to notice of the legal action.
What constitutes “notice”?
A person entitled to notice must receive a copy of the both Notice of Hearing and the Petition that was filed. For a case involving a minor, both parents of the minor must be notified of the hearing.  If the minor is over the age of fourteen, he or she must also be provided with notice of the hearing. 
What will happen at the hearing?
The Court will take testimony about why the conservatorship is necessary, why the nominated conservator is the right person to serve, and what the nominated conservator intends to do with the minor’s funds/assets until the minor reaches the age of majority.
What happens after the hearing?
If a conservator is appointed, the court will sign its order approving the appointment. Then the conservator must get their letters issued from the Clerk of the Court.

There are many requirements for a conservator, but some may be waived in the case of a minor.

Adult conservatorships:
After the filing of the petition, the Court will set a date and time for the hearing.
As discussed above, this is a lawsuit and persons who may be affected by the appointment or who may have priority for appointment are entitled to notice of the legal action.
Who should get “notice”?
The notice that is required is the same as in a minor conservatorship; a copy of both the Notice of Hearing and the Petition that was filed. The proposed protected person should be provided with notice along with their spouse, parents and adult children. If no spouse, parent or adult child is still living then the nearest relative should be provided with notice.
What will happen after the petition is filed?
An attorney will be appointed to represent the proposed protected person. A Court Investigator may be appointed to write a report to the Court on the need for a conservator. The person who wants to be the conservator must complete the mandatory court trainings so that they understand their duties and responsibilities. The proposed conservator will also need to obtain a bond for any funds that will be available for the conservator to use.
What will happen at the hearing?
A hearing will be held during which evidence and testimony will be presented to prove that the proposed protected person can no longer manage his or her finances responsibly. 

What happens if the Court decides to approve the conservatorships?
First congratulations on making it through the process.  At the end of the hearing the Court will issue the Order Appointing Conservator. The appointed conservator will take the Order and their Letters accepting the conservatorship to the Clerk of the Court to be issued. WARNING– if the letters are not issued the conservator has no authority.

What Are a Conservator’s Duties?
The conservator has ninety (90) days from the date of appointment to file an inventory of the protected person’s funds and assets.  A complete and accurate accounting of the protected person’s assets must be filed with the Court annually. The Court will set a due date and accounting period as part of the appointment. This accounting must report all financial transactions that took place within the accounting period and it must balance to the penny. You can hire an accountant to assist you in preparing it. The court has its own accounting forms conservator’s must use and they can be confusing.
The conservator has a duty to act as a reasonable and prudent person. The conservator pays the bills for the protected person such as, medical, educational and housing expenses. 
The assets of the protected person must be used by the conservator solely for the benefit of the protected person.  The conservator can, upon Court approval, be reimbursed from the protected person’s money for administrative expenses and reasonable attorney’s fees. However, the protected person’s assets cannot be used for the conservator’s own personal benefit or gain.  

This is a lot to take in. Being a conservator is so much work. We can help guide you through the process and assist in administering the conservatorship. We have represented many conservators and we get everyone through it. To get started give us a call at (480) 348-1590 or make an appointment online.

Written by Jennifer Kupiszewski, Esq.

I Did My Estate Plan, Now What?

 

Congratulations! You’ve made the decision to move forward in completing your health care power of attorney, living will (for end of life decisions), financial power of attorney, Last Will & Testament, maybe a Trust and maybe a Nomination of Guardian (if you have minor or disabled children). You have taken a huge step in making the process to care for you while you are alive, and to distribute your assets on death, a lot easier.

So what now? Are you done?
Of course not! Here are some things to think about:

Include a listing of your accounts, IRAs, house addresses, and deeds if you have them, with your estate planning documents.  Be sure to update the information as things change.
Include a copy of the beneficiary designations for your IRA, 401(K) and life insurance policies with your estate planning documents.

Do the people you have named in the documents as your decision makers know they are named?
Tell your decision makers where they can find the documents and provide copies of your Health Care Power of Attorney and Living Wills to your Agents.

Do you have a safe deposit box? Does your Agent or Trustee know where the key is located and information about the box? Is it titled to the Trust or are there are other people with signing authority?
If you have a trust, have you retitled your non retirement accounts into the name of the Trust?
Did you complete a personal property memorandum or other document to distribute any special items of your personal effects (jewelry, furniture etc) to specific people?
Do you have someone named to care for your pets?
Does anyone have a key to your home in case of emergency?
Have you done any preplanning for your burial or cremation and if so, have you included a copy of those document with your estate planning documents? 
Do your decision makers know about your preplanned cremation or funeral?
Do you have a long term care insurance policy and does your health care Agent know about that policy and where to find information?
If you have minor or disabled children, write a letter to the child’s guardian about allergies, preferences, government benefit information and other important information.

Your estate planning documents give people authority to make decisions for you during your life and to protect and administer your estate when your gone.  Give them the tools to make that easier during a time that will undoubtedly be difficult. For more information check out our website at www.kilekuplaw.com. We have lots of information and resources.

Written by: Jennifer Kupiszewski, Esq.

Financial Exploitation Claims Explained

 

Financial exploitation of older Americans is a tremendous national problem. It is unclear how much elderly Americans have lost, as much of it goes unreported, but various studies estimate between $3 billion to $37 billion per year. According to the National Council on Aging, 1 in 10 Americans ages 60+ have experienced elder or financial abuse by a trusted person that is relied on for assistance. Seniors scammed by strangers lost an average of $17,000, which is just as terrible. Even more tragic is that those who were taken advantage of by someone they know and trust lost an average of $50,200.

Arizona has laws to protect vulnerable adults but it doesn’t just protect elderly adults. Many younger adults are considered vulnerable due to disability. Who is a vulnerable adult? A vulnerable adult is a person who cannot protect his or herself from financial exploitation because of physical or mental impairment. The person does not have to be incapacitated. Rather, vulnerability is a set of circumstances both physical and environmental that leaves the person dependent on another with no option to change that dependence. For example, a father with advanced Parkinson’s disease who is being cared for by his son. The father may have all of his faculties but is unable to pay his own bills, care for himself, call for help, etc. He is totally dependent on his son making him vulnerable to exploitation.

If you are concerned about a family member here are some things to look for:
A person who is in-charge of a vulnerable adult’s money, either because they are the power of attorney agent or they are on the bank account, and that person is being given gifts, homes, and cash that are uncharacteristic of the vulnerable adult. Often, we hear, “Mom wanted to me to have that.”  The red flag is a change in the person’s traditional behavior regarding money such as someone who historically did not give large gifts and is now giving away large sums of money.


There are three elements of financial exploitation:
1. The threshold question is whether or not the person is a vulnerable adult.
2. Is the potential exploiter in a position of trust and confidence to a vulnerable adult? They do not need to be the power of attorney agent, conservator or trustee. Warning: a person on a bank account is likely in a position of trust and confidence or a person who writes the checks for the vulnerable adult to sign.
3. Did the potential exploiter use the vulnerable adult’s funds for something other than they vulnerable adult’s benefit? Any person, including a spouse or adult child, must be careful to use a vulnerable adult’s assets only for their benefit. For example, if an adult child is in a position of assisting an aging parent with their finances and that parent has dementia, the adult child should not buy their child a car with their parent’s money or have the parent transfer their home or bank accounts into the adult child’s name.

What are the penalties for financially exploiting a vulnerable adult?
There is a potential for criminal prosecution which we don’t see happen often enough. A suit pursuant to A.R.S. §46-456 is a civil suit to recover the vulnerable adult’s money or property and may result in the exploiter being disinherited.

Financial exploitation is an issue that causes fear and anger for everyone. It is a complex issue that involves determining the financial transactions, where the money went, how it was used and determining if the victim is a vulnerable adult. Sadly, it is a significant part of our litigation practice. We can help. Give us call or book an appointment online now. 

Written by: Jennifer Kupiszewski, Esq.

What Is A ‘Dispute’ Or ‘Challenge’ To A Last Will and Testament?

 

Once a person passes away, they leave behind beneficiaries who will inherit their assets as designated in the person’s Last Will and Testament. Most of the time it is pretty straightforward and the Personal Representative (the person nominated in the Will to distribute the estate a/k/a an executor) will distribute the assets without issue. Unfortunately, there are sometimes disputes over the Will and its validity.

The four main types of Will contests are related to:

Did the person who made the Will (the testator) have testamentary capacity?
Were they unduly influenced to make the Will? 
Is it a valid document?
Was there a mistake or is the testator’s intent unclear?

I’m going to give the very brief summary and the basics of each claim.

Testamentary capacity
I often hear clients says that the Will cannot be valid because the person had Alzheimer’s so they lacked capacity.  The requirements for testamentary capacity are minimal and it is a much lower standard. The test generally requires that the testator was aware of:
The extent and value of their property;
The persons who are the natural beneficiaries;
The disposition he is making; and
How the Will distributes the property upon the testator’s death.

Undue Influence
Unlike testamentary capacity, undue influence does not have required elements. Instead the Court will look to eight potential factors that would indicate the testator was unduly influenced to make the Will:
• Did the alleged influencer make any fraudulent representations to the testator?
• Was the Will hastily executed?
• Was the execution concealed?
• Was the person who benefitted by the will also active in its procurement?
• Is the Will consistent with the testator’s prior declarations?
• Are the Will’s provisions reasonable and not unnatural in view of the testator’s attitudes, views and family?
• Was the testator susceptible to undue influence?
• Were the testator and the alleged influencer in a confidential relationship?
• Was it a valid document? 

This is a less common claim. On occasion someone will assert that the document is a forgery because it looks nothing like the testator’s signature.

Finally, sometimes the challenge is related to the lack of clarity of the testator’s intent or that there was a mistake. This can arise when there are competing documents that have opposite distribution provisions. Or, there is a drafting error in the documents such that the language is unclear as to what the testator wanted.

I have been involved in many Will contests and truthfully, it is always emotional and stressful. Putting together the evidence in a way that the Judge will be able to see the wrongdoing is difficult. We can assist with assessing the case, the potential costs versus recovery, and lessening the stress of resolving the disputes. I hope you found this helpful and if we can be of further assistance please give us a call or book an appointment on our website.

Written by: Jennifer Kupiszewski, Esq.



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