When Mercy Meets Justice – An Overview of Arizona's Adult Protective Services Act (APSA)
Gary J. Cohen
In 1988, the Arizona legislature enacted the Adult Protective Services Act (APSA) to address concerns about elder abuse in the state. Recognizing that our aged population is susceptible to abuse, the legislature increased civil penalties and criminal sanctions for those who prey on the elderly or infirm. The legislation includes protection from not only physical abuse, but also financial exploitation and emotional abuse.
Although often referred to as the Elder Abuse statutes, the APSA protects not only the elderly, but any "vulnerable adult." A "vulnerable adult," as defined in the statute, is any person, 18 or older, who cannot protect him- or herself from "abuse, neglect or exploitation by others because of a physical or mental impairment." As written, the statute may protect chronic drug users or alcoholics who are unable to make rational decisions.
The Act greatly expands protection for vulnerable adults, and includes a reporting requirement, the survival of certain rights beyond the victim's death and forfeiture requirements for those who violate a position of financial trust and confidence with a vulnerable adult. In civil suits pursuant to the Act, the court may award actual damages, treble damages for financial exploitation, consequential damages, costs and attorney's fees. Actual damages include pain and suffering not limited by the victim's survival.
The Arizona Supreme Court noted in Denton v. Superior Court, that in many elder abuse actions, pain and suffering will be the most significant element of damages. Although these statutes intend civil actions to be remedial, punitive damages may be awarded. Also, while punitive damages generally require proof of certain elements by clear and convincing evidence, under the APSA, the standard of proof is merely a preponderance of the evidence for all damages, both compensatory and punitive. It is important to note that the Arizona statute explicitly precludes recovery of damages for pain and suffering after the death of an individual.
In addition to personal liability, the APSA provides for the liability of the "enterprise," including the facility where the abuse occurs, even if the abuse is inflicted by employees acting outside the scope of employment. This expands traditional tort law to prevent a facility from escaping liability by claiming the employee acted beyond the course or scope of employment. By holding the facility liable, the legislature intended to pressure facilities into policing their employees to prevent abuse before it happens.
The Arizona Attorney General's Office, responsible for enforcing many of Arizona's criminal laws, has released a booklet that describes potential criminal and civil actions available under the APSA. An example of the actions listed are ones based on physical assault, sexual abuse or threats and intimidation. In addition, use of a telephone to "annoy or offend" a vulnerable adult, criminal damage to property, disorderly conduct, robbery, identity theft, trespassing and credit card theft may all be pursued under the APSA with both criminal and civil remedies.
One of the broadest sections of the APSA is aimed at protecting vulnerable adults from financial exploitation. A person who is in a position of trust and confidence with respect to a vulnerable adult is a fiduciary and is held to the same standards of care as a trustee. Someone in such a position of trust and confidence, who attempts to gain from conduct that meets the statutory definitions of intimidation or deception, is subject to civil liability under the Act, resulting in treble damages. Further, if that individual is an heir of the vulnerable adult being exploited, he forfeits all benefits with respect to the estate as if he had disclaimed his share of the will's proceeds. If the intimidation or deception is done with the intent to permanently deprive the vulnerable adult of any asset, the individual is also criminally guilty of theft.
Stockbrokers, trustees, accountants, tax preparers and attorneys – all may have exposure far beyond what they face under the common law tort regimes, especially with the treble damage provision for financial exploitation of a vulnerable adult. The same parties also have duties under the APSA to report suspected abuse or exploitation of vulnerable adults to whom they provide services.
Actions not intended to harm anyone, let alone a vulnerable adult, may be chargeable under the Act. So, as a final note of caution, all people who provide services to, or are in contact with, a vulnerable adult should take care what they say and do around vulnerable adults to avoid civil and criminal liability, including punitive damages. While the intent of the Adult Protective Services Act is clear, it is also clear that APSA's scope and application are not.
APSA AND MEDICAL MALPRACTICE
IMPORTANT AMENDMENTS ENACTED IN SEPTEMBER 2003
In response to concerns about the law's expansive scope, the Arizona legislature enacted amendments in 2003 aimed at narrowing the reach of the APSA, specifically as it applies to health care providers. Under the revised Act, "licensed health care providers" are exempt from APSA actions based on the neglect, abuse or exploitation of an incapacitated or vulnerable adult, unless certain narrow and specific circumstances are met. Licensed health care providers include: medical and surgical doctors, doctors of osteopathy, podiatrists, nurse practitioners and physician assistants.
An otherwise exempt health care provider remains liable under the APSA only if: 1) the provider is serving in the capacity as medical director or house physician of a care facility where the abuse, neglect, or exploitation occurred; or 2) that provider is the patient's primary care provider at the facility and was not the patient's primary provider in the two years before the patient was admitted to the facility. A provider who supplies services to a facility-resident patient for a specific condition, however, retains his or her exempt status from liability under the APSA.
A suit for civil damages must now be brought within two years of discovery (rather than the previous seven-year limitation).
Any APSA claim that occurred prior to September 18, 2001 must be filed by September 17, 2004, or the claim will be forever barred.
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