Arizona Elder Law & Probate Litigation Blog : Arizona Probate Lawyers & Attorneys : Nirenstein Garnice Soderquist Law Firm : Elder Law, Guardianship : Phoenix, Scottsdale, Tempe AZ

Jacob Braden, an adult with developmental disabilities, tragically died in 2005 as a result of injuries he sustained while living at Arizona Integrated Residential and Educational Services, Inc. (AIRES) facility. Jacob’s estate (Estate) sued the State of Arizona in Braden v Arizona and alleged the State was negligent in its supervision of AIRES and civilly liable under provisions defined in Arizona law Adult Protective Services Act (APSA) (A.R.S. § 46-455). Chapter 4 of Arizona Revised Statutes Title 46 are often referred to as the “Exploitation of a Vulnerable Adult” provisions.   

Recently, the Arizona Court of Appeals held that the State of Arizona can be held liable for the abuse and neglect of developmentally disabled adults in private care agencies if the State contracted with the private care agency to provide services. 

In the Braden case, the Estate claimed that the State of Arizona “provided care” by managing, planning, directing, and supervising Mr. Braden’s daily care. 

The Court of Appeals rejected the State’s argument that a caregiver relationship must be present in order to give rise to liability and explained that the remedial nature of APSA obligated the Court to construe the legislation broadly. APSA was passed to protect incapacitated/vulnerable adults and to increase remedies available to them. Because the State determined what level of supervision Mr. Braden needed, ensured that AIRES followed these requirements, and monitored whether he was receiving that care, the Court of Appeals held that the State did “provide care.”

The Court also rejected the State’s interpretation of the oversight responsibilities defined in Title 36, finding that the State could avoid liability and consequences for failing to meet statutory obligations to protect the vulnerable and provide oversight by passing the buck to private vendors as the sole care providers. The Court found that such a result would conflict with APSA’s purpose of increasing the remedies available to vulnerable adults. 

In sum, the Arizona Court of Appeals held in favor of Jacob Braden’s Estate and found that the State of Arizona may be civilly liable for the negligence of its contracted private agencies because the State “provides care” and “assumes a legal duty to provide care” under APSA. The case was remanded for further proceedings consistent with the appellate opinion. 

For any further information regarding Arizona estate and probate litigation, please contact Nirenstein Garnice Soderquist at www.arizona-probate-law.com

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Arizona Probate court asked to sanction attorneys in Marie Long case.  For more on this see Laurie Robert's Columns and Blogs at azcentral.com.

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A dispute over the frozen remains of a 71-year-old Colorado Springs woman has ended in a settlement.

The family of the late Mary D. Robbins, a retired nurse, agreed Wednesday to end a legal battle aimed at preventing her from being cryo-preserved by an Arizona nonprofit.

In return, Alcor Life Extension Foundation, of Scottsdale, Ariz., has agreed to pay a mortuary to cremate any part of her remains that Alcor deems not suitable for preservation and return those ashes to her family. Alcor also agreed not to pursue a $50,000 annuity that Robbins had set aside in 2006 to pay for her preservation.

Both sides agreed not to publicly discuss what parts will be frozen or cremated. But in her contract with Alcor, Robbins specified that her head was to be frozen.

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Every now and then you hear about something that is truly joyful.  While reading one of our favorite blogs, the South Florida Estate Planning Law Blog, written by David Shulman, we saw his article, "Be Fruitful and Multiply: Woman dies with 2,000 Living Descendants" taken from the New York Times. 

We felt compelled to share.

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When there is internal family quarreling over who gets to act as the guardian of or conservator for Mom or Dad, it is not unusual for the court to appoint a neutral, third-party private fiduciary.  A private fiduciary is a person or entity, who for a fee, serves as a court appointed guardian and/or conservator for the ward and is unrelated to the ward.  In Arizona, a “guardian” is responsible for the protection of the incapacitated person (called the “ward”) and a “conservator” is responsible for the finances or estate.  Private fiduciaries in Arizona are licensed through the Arizona Supreme Court, see Arizona Private Fiduciaries. 

Unfortunately, inner-family fighting does not necessarily end once a private fiduciary is appointed.

When someone is found to be incapacitated and in need of a guardian and/or conservator many actors come into play.  There is the ward (incapacitated person), and court appointed counsel for the ward.  Generally if the ward cannot meaningfully communicate his/her intentions, court appointed counsel will ask leave of the court to serve as the guardian ad litem , (sometimes called the “best interests attorney”).  However, a separate guardian ad litem may also be appointed by the court to  recommend what course of action is in the ward’s best interest.  Typically, private fiduciaries are “for-profit” entities.  One quandary facing private fiduciaries is protecting the interests of the ward  while responding to the numerous pleadings and in-fighting that may continue even after their appointment. 

Thus in contested matters, the ward’s estate is likely paying the fees for his/her attorney, the fees for the guardian/conservator, the fees for the attorney for the guardian/ conservator, and possibly other experts.  With so many parties the costs of a guardianship and conservatorship can be quite costly. The problems are compounded when there is inner-family fighting over what is best for the ward and the ward’s estate.  The private fiduciary may be compelled to respond to the numerous pleadings and cross pleadings filed by interested parties.   

The court will generally not restrict the filing of motions or pleadings by warring family members for fear of missing substantive complaints.     
 
So, what is a private fiduciary to do to try and keep costs down?  Here are a few suggestions for private fiduciaries:

• Seek approval from the court to participate in Alternative Dispute Resolution (ADR) or mediation.  Although initially expensive, removing the formality of litigation and seeking consensus amongst family members as to how future complaints may be heard without court intervention can be productive and reduce costs;

• Seek the appointment of a third party special master to hear and decide smaller issues;

• In extreme cases, consider filing for Rule 11 sanctions against frivolous claims;
   
• Consider asking the court to award attorney’s fees in any contested action upon “clear and convincing evidence that the claim or defense constitutes harassment, is groundless and is not made in good faith”, pursuant to A.R.S.§12-341.01; although this needs to be cautiously applied, for the ward may be furthering the litigation and in-fighting.   

Since the private fiduciary’s goal is to preserve the estate as much as possible, trying to find balance to hear the concerns of the ward and family members, can be a treacherous undertaking.   It is not unusual for the private fiduciary to become the target of the family’s anger and frustration. 

If you have any questions regarding guardianships or conservatorships, or representation of private fiduciaries, please contact the probate & elder law attorneys at Nirenstein Garnice Soderquist PLC.
 

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