Alleging exploitation -- who pays?
Arizona has an especially strong law permitting punishment for abuse, neglect or exploitation of vulnerable adults. Once a finding has been made that a senior was abused, neglected or exploited, the penalties can be quite severe. They can include automatic imposition of treble damages (that is, three times the provable injury). If the defendant was an heir or named in the victim's will his or her inheritance can actually be forfeited. (You can look at Arizona's broad statutory authority at Arizona Revised Statutes section 46-455.)
That's good news for those trying to recover for abuse, neglect or exploitation. But there is another side to the strong Arizona law. It is increasingly common to see allegations of exploitation raised in all sorts of family disputes, and especially in will and trust contests. The result can be extensive and expensive legal investigations and proceedings.
A recent Arizona Court of Appeals (Division I) case illustrates the problem. When Victor Friedman died in Phoenix at the age of 91, he left a warring family, three different trusts, and a will. His will and his trusts almost completely disinherited his son Dennis and, after a small bequest to his sister Libby, left the bulk of his estate to his daughter Jo Ann.
Dennis Friedman was sure that his sister had taken advantage of their father, and he and his aunt Libby filed a probate proceeding in which they alleged that there had been exploitation. They asked that Jo Ann be disinherited as a consequence. After some initial legal skirmishing the family members all agreed that a "special administrator" could be appointed to look into the allegations, and that they would be bound by the special administrator's decision.
The special administrator investigated the background and decided that Jo Ann had behaved completely appropriately. She also questioned Dennis and Libby's motivations for filing the actions, and recommended dismissal of the litigation.
The probate judge granted the dismissal, and then noted that the special administrator had cost the estate $27,500 in legal and investigative fees. The judge ordered that Dennis and Libby's share of the trust estate should pay all those expenses.
Arizona's Court of Appeals (the intermediate appellate court--an appeal might still be taken to the Arizona Supreme Court) considered the case and this week sent the matter back to the probate judge for a follow-up determination. While the appellate court agreed that the cost of investigating allegations that turn out to be unfounded can be assessed against the person making the allegations, that result is not automatic. The Court of Appeals ruled that the cost of investigation must be paid out of the entire estate unless the probate judge finds that Dennis and Libby acted maliciously in promoting their claims of exploitation.
No doubt about it -- Arizona's powerful laws on abuse, neglect and exploitation can help right wrongs committed against the most vulnerable of adults. They can also be invoked without foundation, and incur significant costs for a family member or friend who turns out to be not just blameless, but exemplary. And that's not even the end of the issue; while the estate's (and Jo Ann's) potential liability for the $27,500 cost of the special administrator is being decided, there are presumably many thousands of dollars of legal fees and court costs being incurred by the lawyers on both sides of the question while they work out who is responsible for paying the disputed fee.
The case is In the Matter of the Estate of Friedman, decided February 12, 2008.
Robert B. Fleming
Fleming & Curti, PLCTucson, Arizona
www.elder-law.com
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This is really unfair and devastating to the innocent party. The costs mentioned in this article is in monetary terms. Emotional and psychological costs can never be quantified.
What about the wishes of the deceased?
I would hate to see my hard earned assets be depleted by legal fees, court charges etc., just because someone disagreed with my decision on who should inherit my assets.
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