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

History
 

The Frye standard relates to admissibility of expert testimony and was established by Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).  The Frye standard requires that expert testimony be based on science that has gained “general acceptance” in the relevant field.  The Frye standard was utilized in federal courts until 1993.
 

A 1993 U.S. Supreme Court case Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), established the Daubert standard.   There were a number of subsequent cases that expanded on Daubert and in December 2000 Federal Rule of Evidence 702 was formally amended to reflect the implications of the Daubert standard.  In order to be admitted the testimony must be based on sufficient facts or data, the product of reliable principles and methods, and the witness must apply the principles and methods reliably to the facts of the case.
 

• Specifies that in a civil or criminal action, only a qualified witness may offer expert testimony regarding scientific, technical or other specialized knowledge and the testimony is admissible if the court determines that all of the following apply:
   

1. The witness is qualified to offer an opinion as an expert on the subject matter based on knowledge, skill, experience, training or education.
2. The opinion will assist the trier of fact in understanding the evidence or determining a fact in issue, the opinion is based on sufficient facts and data and the opinion is the product or reliable principles and methods.
3. The witness reliably applies the principles and methods to the facts of the case.

• Requires the court to consider the following factors, if applicable, in determining whether the expert testimony is admissible pursuant to the provisions noted above:
   

1. Whether the expert opinion and its basis have been or can be tested and whether the opinion and its basis have been subject to peer reviewed publications.
2. The known or potential rate of error of the expert opinion and its basis.
3. The degree to which the expert opinion and its basis are generally accepted in the scientific community.

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.

Arizona Court of Appeals, Division 1, held in In re MH, that although Section 36-529(D) allows a patient to contest their involuntary hospitalization for the evaluation, it does not give them a right to contest the actual evaluation.  At such a hearing, parties may contest the hospitalization by showing that they are not likely to deteriorate further, suffer harm to themselves, or cause harm to others if not hospitalized during the evaluation, but the patient may not contest the valuation itself.

For all questions regarding Arizona mental health law, contact Nirenstein Garnice Soderquist PLC at 480.961.5900.

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.

We felt compelled to share.

Check out  this recent article by Wright, Jennifer L., "Guardianship for Your Own Good: Improving the Well-Being of Respondents and Wards" (2010). U of St. Thomas Legal Studies Research Paper No. 10-09.  Very insightful.

In her article, Ms. Wright argues that the guardianship system as a whole must be reformed to maximize the therapeutic effects of guardianship and to minimize the unnecessarily anti-therapeutic effects. She examines the effects of guardianship from a therapeutic jurisprudence perspective and proposes and analyzes modifications that could enhance the therapeutic effects of guardianship.

In Christopher G. v ADES, 2010 WL 282937 (Ariz.App. Div. 2), decided january 25, 2010, Father appealed from the juvenile court's order granting permanent guardianship of his minor son to his adult son Brandon and Brandon's partner Jim. Father contends the evidence at the contested guardianship hearing was insufficient to support the juvenile court's determination that the CPS had “made reasonable efforts to reunite [son] with his father and [that] further efforts would be unproductive because [Father] is unable to properly care for [son].” The Court of Appeals disagreed.

This case deals with A.R.S. § 8-871(A)(3), and the juvenile court's authority to establish a permanent guardianship if it is in the child's best interests and if, when the child is in ADES's custody, ADES “has made reasonable efforts to reunite the parent and child and further efforts would be unproductive.”

The Court of Appeals held that

the court may waive the latter requirement “if reunification of the parent and child is not in the child's best in-terests because the parent is unwilling or unable to properly care for the child.” Id. A court must “give primary consideration to the physical, mental and emotional needs of the child.” § 8-871(C). In the context of proceedings to terminate parental rights, our courts have stated that ADES “need not provide ‘every conceivable service,’ but it must provide a parent with the time and opportunity to participate in programs designed to improve the parent's ability to care for the child.” Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, ¶ 37, 971 P.2d 1046, 1053 (App.1999), quoting In re Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App.1994).

To read more on the specific facts,

Following his release, Father was evaluated by a psychologist who diagnosed him with alcohol dependance and narcissistic personality disorder with antisocial features. The psychologist opined that, although “[a]lcohol dependance can be treated with abstinence,” “[n]arcissistic personality features” are “highly resistant to treatment,” and “[a]ntisocial personality features do not respond to treatment.” She recommended that Father receive individual therapy, psychiatric consultation and parent aide services and that he participate in parenting classes, groups for batterers and individuals with grief issues, and substantial alcohol abuse treatment, including a twelve-step program.

Father participated in numerous services ADES provided him. However, ADES recommended that the court terminate Father's parental rights or establish a permanent guardianship based on Father's alleged failure to benefit sufficiently from those services. At the permanency hearing, the juvenile court changed the case plan goal to permanent guardianship and directed ADES to file a motion for guardianship.

The court held a four-day contested guardianship hearing afterwards noting that the case rested primarily on its determination of the credibility of the parties and witnesses.  It did not find credible Father's testimony denying alcohol use and episodes of domestic violence and found that “[w]hile it is true that [Father] has actively participated in the services offered by CPS, it is readily apparent that he has not benefitted from them, his attitudes and behaviors have not changed, and he is not and will not be able to safely parent [son] in the foreseeable future.”

On appeal, Father challenges only the determination that ADES had made reasonable efforts to reunite him with his son. Specifically, he contends the individual therapy and parent aide services he received were lacking. The Court of Appeals did not agree, indicating

In her April 2008 evaluation, [pyshcologist] recommended [Father] engage in individual therapy. But she had no recommendation as to the specific qualifications for a therapist, stating at the guardianship hearing she thought “[a]nybody [who] could communicate with [Father] would be great.” Father was assigned an individual therapist by “CODAC,” the entity through which he received the bulk of his reunification services. Initially, CODAC assigned [D.T.], who also lead the “therapeutic groups” [Father] participated in at CODAC. [Father] appeared to have developed a therapeutic relationship with [D.T.] and apparently never expressed any dissatisfaction with him.”

Second,

“[P]sychologists [M.G. and E.L.] completed a family psychological evaluation of [Father], [son], Brandon and Jim. They opined that, given [Father's] “very deep-set characterological issues ... his prognosis [was] guarded.” But, they recommended [Father] continue to engage in services, including individual therapy. At the guardianship hearing, [M.G.] testified that, at the time, he and [E.L.] thought “[D.T.] was the right guy to” provide individual therapy to [Father]. Nonetheless, [Father's]case manager had become dissatisfied with the level of service [D.T.] had been providing. She also testified that [M.G and E.L.] had recommended a master's level therapist, and apparently shortly thereafter she discovered [D.T.] did not have this level of qualification. [D.T.] was, in fact, a counselor rather than a therapist or a master's level social worker. The case worker spoke with a supervisor at CODAC, and [Father] was reassigned to master's level therapist, [S.R.].

Third,

“[Father] began therapy with [S.R.] . . . and had five sessions with him between then and April 23, 2009, when [S.R.] left CODAC on medical leave. [Father] was then assigned to another master's level therapist, M.D., but he failed to attend the first two appointments he had scheduled with her and then failed to respond to her attempts to set further appointments. Thus, by the time of the guardianship hearing, [Father] had not been attending individual therapy for approximately four months.

Despite his failure to object to the juvenile court's previous determinations at dependency review and permanency hearings that ADES had been making “reasonable efforts” to preserve the family by providing them with various services, he argues on appeal that [D.T.] had not been providing him with appropriate therapy and that CPS should have known sooner [D.T.] was not sufficiently qualified to address his issues.

The Court stated:

“The evidence described above, however, does not support [Father's] arguments. Contrary to [Father's] contention on appeal, [psychologist] Plevell had not specified a master's level therapist was required, [Father] had not complained about his therapy, and he was assigned to a master's level therapist shortly after Drs. M.G. and E.L.] made that recommendation. Although the CPS case worker acknowledged at the guardianship hearing that [D.T.]'s provision of services had been “a problem,” there is no evidence CPS failed to make reasonable reunification efforts in relying on CODAC to assign an appropriate therapist initially and then working with CODAC staff to reassign [Father] to an appropriate individual therapist when [D.T.'s] lack of qualification came to light. Moreover, contrary to [Father's] contention, no evidence showed that, had the issue been discovered earlier, [Father] would have benefitted from counseling. He did not benefit from his sessions with [S.R.]. And as the juvenile court found, it was “readily apparent” from the evidence presented that, although [Father] had participated in numerous appropriate services, he had not benefitted from any of them.”

The Court further indicated that

“Likewise, the evidence does not support [Father's] contention that ADES failed to provide him sufficient parenting instruction. Drs. [pyshcologist], [M.G. and E.L.] all agreed that [Father] needed parenting classes as well as “hands-on” instruction with someone who could give him direct feedback about appropriate parenting practices with [son].”

Bottom line, “The juvenile court's determination that ADES had “made reasonable efforts to reunite [son]  with his father and further efforts would be unproductive because Father is unable to properly care for [son]” is supported by the record. So, too, is the court's determination that a permanent guardianship is in [son's]'s best interests. No evidence supports [Father's] contention that ADES failed to make a “good faith” effort to reunite him with his son.” 
 

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.
 

A guardian is an individual or institution such as a child, relative or bank trust department appointed by the probate court to care for an incapacitated person-called a "ward"-or for the ward's assets.

In many instances, as our families grow older, it becomes necessary to make sure that elder family members are properly cared for.  Sometimes, age and/or medical conditions make it necessary that the younger family members who care for -- and have their elder family member's interests at heart -- step into to make important decisions.

Instead, Anthony Marshall’s refusal to grant his centenarian mother’s wish to die surrounded by loved ones at her 65-acre Hudson River estate pushed Philip into what became a seven-year odyssey seeking “elder justice” for his grandmother. When Philip Marshall embarked on this mission in 2002, he couldn’t know that his inquiries would snowball, then avalanche, into perhaps the most publicized case of elder abuse of all time.

Basically, Ms. Astor's son, Philip, did the right thing and did not steal "every last penny from her estate" -- even though he could have. It just goes to show you that there are plenty of good children out their who truly care about their aging and elderly parent's well-being -- both emotionally, physically and financially.

As a result of that tragic event, probate litigation ensued, during the course of which a special action was brought under the Arizona Public Records Law, A.R.S. § 39-121, et seq.challenging the probate court's refusal to enjoin three governmental agencies, the Maricopa County Medical Examiner, the Office of Vital Records in the Arizona Department of Health Services and the Office of Vital Registration in the Maricopa County Department of Public Health, from disclosing to the public the death certificate, autopsy reports and all other documents discussing the cause of death.

Accepting jurisdiction, the Court of Appeals held that because significant privacy concerns may preclude release of many medical examiners' records and related documents, the probate court must conduct an in camera review before permitting the release of such records and that death certificates are not subject to public inspection under the Arizona Public Records Law.

Read the court's opinions after the jump.

“[i]n this case, in camera review will surely lead to the determination that many of the records are not appropriately subject to public inspection. For example, it is difficult to conceive of circumstances that would justify the public disclosure of autopsy photographs here. Other privacy concerns, including the ongoing privacy interests of living crime victims, must be weighed against the need for public awareness of the government's performance of its law enforcement functions. Upon completion of a thorough review of the specific records at issue, the superior court will be in a position to enter an order carefully tailored to the facts of each case."
 

While the death certificate, autopsy report and photographs, and investigative records were found to be “public records” pursuant to A.R.S § 11-597, the Court in Schoenewies v. Hamner (PDF) held that the probate court erred in ruling that all documents were subject to a “general right of inspection” because public records are not available for inspection when “they are made confidential by statute, when the public interest in disclosure is outweighed by privacy concerns, or when the right to disclosure is outweighed by the best interests of the State”.

The Court stated,

“[b]ecause it failed to conduct an in camera inspection, the probate court did not properly weigh privacy concerns against the policy in favor of disclosure. The Public Records Law serves the primary purpose of ensuring that the people are able to monitor the activities of their government, not the lives of their fellow citizens. Therefore, when the performance of important government functions is implicated, the interest in disclosure is strong and privacy interests must often yield. But when records of government action are merely incidental to an otherwise private matter, including the death of an individual, privacy interests weigh more heavily.

This case involves a death and potential injuries to another that occurred as a result of potential or apparent unlawful conduct, and the government's response to that situation merits public scrutiny. Many cases involve no such concerns, and in those cases privacy interests might well justify the withholding of all autopsy documents from public view.”

Further,

“[b]ecause the probate court refused to conduct an in camera inspection before determining whether the documents were subject to disclosure to the public, err occurred even though no Arizona decision imposes a per se rule requiring an in camera inspection of public records (and we do not announce one here), the necessity of such a review becomes nearly inescapable when the court contemplates the release of documents that inherently raise significant privacy concerns”. 

The salient theme to take from this case again is that public records are not always public!

The Arizona Court of Appeals recently, in Estate of Ann M. Friedlander, decided that the probate court is not required to make an express finding of bad faith when it denies a fee application made by a nominated personal representative pursuant to Arizona Revised Statutes ("ARS") Section 14-3720.

What happened in Estate of Ann M. Friedlander?

In this case, the decedent died leaving a will with various amendments. The will nominated decedent's son and two of her seven adult grandchildren as co-personal representatives. Pursuant to the will, all decisions concerning the estate were to be made by a majority vote. One of the nominated adult grandchildren, Amy, filed a petition to be appointed special administrator of the estate alleging the decedent’s son’s unwillingness and/or inability to serve in a fiduciary capacity. The other adult nominated grandchild and decedent’s son both filed objections to the petition, as did three other grandchildren. Amy subsequently filed an alternative petition for appointment of an independent special administrator/personal representative.

The court denied Amy's petitions and appointed the other adult nominated grandchild and decedent’s son as co-personal representatives. Thereafter, Amy filed an application for estate litigation expenses pursuant to A.R.S. § 14-3720, requesting approximately $45,000 in attorneys' fees and costs from the estate. Appellees objected alleging Amy did not act in good faith, no benefit was conferred to the estate, and Amy's fees and costs were unreasonable. The court denied Amy's application. Amy subsequently filed a motion for reconsideration, which was also denied.

Read what happened on appeal after the jump.

1. The probate court erred by failing to sua sponte order an evidentiary hearing on the fee request;
2. The probate court's failure to expressly state its finding of bad faith requires remand for additional litigation; and
3. The evidence did not support a finding that Amy failed to act in good faith.

The Court of Appeals found that the probate court was within its discretion to rule on Amy's fee request without a separate hearing, there was no need for a finding of bad faith, and the record supports the probate court's ruling. In particular, the court expressed that

There is evidence that Amy brought the proceeding for an improper motive, that she did it notwithstanding substantial evidence that it was not grounded in fact, and that it did not benefit the estate.

Regarding the first argument, the Court found that the probate court was within its discretion to not order a hearing on Amy's fee request sua sponte since Amy did not request a hearing or oral argument, and the probate court had sufficient written statements before it to issue a ruling on the application without conducting a hearing or oral argument.

Regarding the second argument, the Court held that the probate court did not err by not expressly stating a finding of bad faith on the record, indicating that it would “imply the findings and conclusions necessary to support the judgment” because neither party requested findings of fact or conclusions of law and the court did not issue its own findings.

As for the third argument, the Court held that the evidence supported the probate court's finding that Amy did not act in good faith and thus was not entitled to receive necessary expenses and fees even though the probate court did not make express findings regarding whether she acted in good faith. In doing so, the Court indicated

"that all of the circumstances surrounding the petition are relevant to the court's determination of good or bad faith and that the good faith determination is objective and the personal representative's statements about her own subjective motivation for bringing the action and whether or not it benefits the estate are relevant to determining whether an action is in good faith. Further, the fee applicant bears the burden of proving his or her own good faith in support of the fee award."

Here, the Court of Appeals found that the probate court had ample evidence that Amy did not bring the action in good faith based on nominated grandchild’s testimony that Amy filed the petition “to get back at [decendent’s son]” for expressing concern ten years earlier about Amy's nomination as a personal representative.

Second, Amy's other two sisters submitted an affidavit that they withdrew their support from Amy's petition because she falsely told them she had proof decedent’s son took money from the decedent.

Finally, there was testimony that the delay in submitting the will for probate was due to Amy's action. Moreover, evidence revealed that Amy knew the factual allegations against decedent’s son were not well founded, as were her concerns about the nominated co-personal representative’s ability or competence to serve as co-personal representatives were unfounded.

In sum, the salient point to take away from this case is that Bad Faith is a Bad Thing!