By: Garrett J. Olexa
A personal representative of a decedent’s estate has a statutory duty to serve the best interests of the successors to the estate. One such duty is to take possession and control of the decedent’s property for purposes of administering the estate. A personal representative is also expected to identify any person who is believed to have concealed, embezzled, conveyed, or otherwise disposed of, any property of the decedent in an unlawful manner. If the decedent was a vulnerable adult, a personal representative should be aware of, among other things, the Adult Protective Services Act (the “APSA” or “Act”), how and when it applies, and generally what it requires.
The APSA was enacted in 2008. It provides a statutory cause of action for incapacitated or vulnerable adults who are the victims of neglect, abuse or exploitation. Significantly, the civil remedies available under the Act can be pursued not only by the vulnerable adult, but also by a personal representative of the vulnerable adult’s estate should the vulnerable adult pass away before a civil action is initiated or completed.
The phrase “vulnerable adult” under the Act is defined broadly. It includes individuals over the age of 18 who are unable to protect themselves from abuse, neglect or exploitation by others because of a physical or mental impairment. “Impairment” refers to anything that causes a decrease in strength, value, amount, or quality, and “exploitation” includes improper use of a vulnerable adult’s resources for someone else’s advantage. So, “vulnerable adults” might include, among others, persons impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic intoxication or use of drugs, or other causes to the extent that they lack sufficient understanding or capacity to make or communicate responsible decisions concerning their own person.
The legislature has also broadly defined the class of possible violators of the Act. They include any “person in a position of trust and confidence” to a vulnerable adult. A person in a “position of trust and confidence” includes not only one who has assumed a duty to provide care to the incapacitated or vulnerable adult, but also someone who acts as a joint tenant or tenant in common with an incapacitated or vulnerable adult. “Joint tenancy” includes things such as joint ownership of the vulnerable adult’s house and bank accounts. The foregoing might come into play when an adult child, grandchild, niece or nephew adds his or her name to the deed to the vulnerable adult’s house and/or bank accounts. When such an event has occurred, duties arise under the Act. Thus, it becomes important for the personal representative to consider the new joint owner’s intent in taking such action, and whether the new joint owner satisfied his or her duties under the Act.
What constitutes a violation of the Act? APSA provides that a “person in a position of trust and confidence” to a vulnerable adult violates the Act if he or she either fails to act for the benefit of the vulnerable adult to the same extent as a trustee or, by intimidation or deception, knowingly took control, title, use, or management of the vulnerable adult’s property with the intent to permanently deprive the vulnerable person of the property. A family member who takes control of a vulnerable adult relative’s assets must act as a prudent trustee would act; therefore, he or she is obligated to act solely in the best interest of the vulnerable adult, and must be prepared to explain how the vulnerable adult benefited from the transfer of property and how his or her duty to act as a prudent trustee was otherwise satisfied.
If a personal representative establishes that someone exploited a vulnerable adult, APSA places a wide arrange of remedies at the Court’s disposal. For instance, after liability is found, the Court may order that the party violating the act forfeit any inheritance he or she would otherwise be entitled to. The Court can also revoke a transfer of property by the vulnerable adult to someone who has violated the Act. Further, the Court may award actual and consequential damages, costs, and attorneys’ fees, and may also order that double the actual damages be paid.
In sum, if and when you have been named as a personal representative for the estate of someone who was a vulnerable adult, you should consider the APSA as part of your analysis of any questionable transfers or transactions, or, consult with an attorney familiar with the Act.
*Garrett Olexa is a Member with the law firm of Jennings, Strouss & Salmon, PLC and works in its estate planning and estate litigation practice group. He can be contacted at email@example.com or 623.878.2222.