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The
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August, 2011

Roosevelt Lake Bridge  

Roosevelt Lake Bridge

courtesy of Mike Hickey

IN THIS ISSUE 

 

Welcome

Protecting Vulnerable Adults

Client Spotlight

Attorney Corner

      PROTECTING       VULNERABLE ADULTS 

 

Invisible Crime

Adult Protective Services

Civil & Criminal Penalties

Reporting Susptected Abuse

Example

   

Protecting Our Loved Ones
 

ClientClient Spotlight 

 


When accidents happen, quick action can often help prevent further damange to your property and belongings.  Our client this issue wears two hats: known as ServPro Northwest Phoenix/Anthem servicing the Phoenix metropolitan area and as Servpro of Yavapai County. 

 

They understand the stress and worry that comes with a fire or water damage and the interruption it causes to your life and home. Their goal is to minimize the disruption and quickly make it "like it never even happened."  They specialize in the cleanup and restoration of residential and commercial property after a fire, smoke, or water damage situation.  Staff and crews are highly trained in property damage restoration. From initial and ongoing training at a corporate "real world" training facility to regular IICRC and IAQA industry certification, you can be assured their staff is equipped with the knowledge to restore your property.


Besides being damaging and devastating, improperly dealt with water damage can result in an unhealthy environment for you and your family. The same applies to office buildings and workers.  The quicker mitigation services begin, the less damage that occurs. That's why they strive to return your call within one hour and have crews on site if needed within two hours of your call (24/7, 365 days per year).  Services include emergency water extraction and mitigation, dry-out with state of the art equipment for carpet, vinyl, hardwood, and other floor covering restoration or replacement; insulation, drywall, and paint repairs; mold remediation; and drying and restoration of household contents.


Every year, fire devastates the lives of thousands of families. If the tragedy of fire should strike your home, American Fire & Water Restoration and ServPro of Yavapai County can provide a full range of emergency services, including emergency board-up and securing of your home, deodorization, complete cleaning, rebuilding, and restoration of your home and contents to their original condition.


Mold in your home or business can damage the structural integrity of your property and cause some mild to serious health problems to at-risk people (children, elderly, diabetics, people on antibiotics, people with allergies, going through chemotherapy, and other immune-compromised people.  Mold can be caused by a large variety of conditions besides having a water-damage incident.  It can be caused by an improperly balanced HVAC system, a humidistat malfunctioning, a compromised vapor barrier, cracks in an exterior wall allowing moisture to migrate inside, and the list goes on.  At the first sign of mold or musty odors, it is better to act immediately because mold can quickly become a problem.  

  

ServPro of Northwest Phoenix/Anthem and ServPro of Yavapai County can help you, whether it's mold, fire or water damage. For more information, please contact the appropriate office, respectively, at 623-780-9111 or visit their website at www.servproofnwphoenix.com and at

928-636-7600 or visit their website at www.servepro.com.

 


ServPro
ServPro Emergency Service
 

AttorneyATTORNEY'S CORNER 

 

$1.3 Million Verdict in Commercial Litigation

 

On July 13, 2011, a jury awarded a client of Margrave Clemins nearly $1,300,000.00 on his claims for breach of contrct, breach of the covenant of good faith and fair dealing and breach of fiduciary duty arising out of a shareholder dispute.  The litigation was filed by a minority shareholder of a law firm against the majority shareholder in July of 2008.  The case was aggressively defended through trial.  For more information, contact Mike Kitchen or Lat Celmins.

 

"This litigation consumed nearly three years and a two-week trial," Mike Kitchen said, "but our client felt he had been unfairly treated, and obviously the jury agreed with him based upon the evidence presented."

 

OUR PRIVACY POLICY 

We recognize the importance of our clients' trust, and keeping our clients' information confidential is a high priority.  We do not disclose any personal information about our clients.  Lawyers have been and continue to be bound by professional standards of confidentiality. 

 

We will never share, sell or rent individual personal information with anyone.  Information submitted to us is only available to employees managing this information for purposes of contacting you or sending you emails based on your request for information, and to contracted service providers relating to our communications with you. 
 
 

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DISCLAIMER 

This newsletter is for informational purposes only.  Legal advice is provided only through a formal attorney/client relationship. 

Margrave Celmins, P.C.
8171 E. Indian Bend Rd., #101
Scottsdale, Arizona 85250
480-994-2000

WelcomeThis month we feature an article about protecting vulnerable adults, which is or likely will be a subject of concern to many of us.

Our client spotlight this month is on ServPro, both Northwest Phoenix/Anthem and ServPro of Yavapai County.  They provide cleaning and restoration services for damage suffered from fire, water, mold and biohazard problems.

See the links below in "About Our Law Firm" to take you directly to our revised website and links, as well as any of our blogs.

If you want to be alerted to one of our new blogs in any specific area, please sign up on the Twitter link below, and you will receive a notification that you may link to if the subject interests you.

As always, if you see something a friend or business associate might find useful, please feel free to forward this newsletter to them.  And if you have any thoughts to share, please contact our editor Patty Copeland at pcopeland@mclawfirm.com.


Michael Margrave
Margrave Celmins, P.C.

_________________________________________________
 
ProtectingPROTECTING VULNERABLE ADULTS 

 

Elder abuse received worldwide attention this past February when a California judge issued a restraining order against the stepson of 90 year old actor Mickey Rooney.  Mr. Rooney filed the request after years of alleged abuse, including his step-son withholding his medication and exploiting his finances.  Most vulnerable adults, however, do not have the advantage of attracting press or the money to hire a high powered attorney.  Unfortunately, with the aging of the baby boomers and the down economy, claims of  abuse or neglect of a vulnerable adult, and exploitation of assets, have increased within the court system.  This article is intended to assist you in determining whether a vulnerable adult is in need of protection and, if so, what steps you should take in order to protect the vulnerable adult.

 

InvisibleInvisible Crime

 

 Elder abuse is sometimes referred to as an invisible crime because it is difficult to detect for a number of reasons.  The most obvious reason is that nobody is aware of the abuse.  In most cases the vulnerable or incapacitated person does not have a voice.  Perhaps that person is not aware of the abuse because he or she is an incapacitated person due to mental deficiency or illness, or is a vulnerable adult and is dependent upon that person or persons to whom they are afraid to voice their concerns.  Below is a list of some of the warning signs that abuse, neglect and/or financial exploitation may be occurring:

 

 1. Injury not cared for properly or delays in seeking care for treatment;

 

 2. Malnutrition, dehydration, improper administration of medication, lack of basic hygiene, isolation and depression;


 3. Bedsores;


 4. Person is being asked to sign financial documents; e.g., Powers of Attorney;


 5. Person is accompanied by a family member or other person who seems to coerce him/her into making transactions, especially in cases where large amounts of cash are being withdrawn; and


 6. Person is concerned or confused about "missing" funds in his or her account.

 

AdultAdult Protective Services
 

In 1988, Arizona enacted the Adult Protective Services Act ("APSA") to protect vulnerable and incapacitated adults from physical and financial neglect, abuse or exploitation. Arizona Revised Statute Ann. 46-456(A) states: 

"A person who is in a position of trust and confidence to a vulnerable adult shall use the vulnerable adult's assets solely for the benefit of the vulnerable adult and not for the benefit of the person who is in the position of trust and confidence to the vulnerable adult or the person's relatives unless either of the following applies: 

 

 1. The superior court gives prior approval of the transaction.  

 

 2. The transaction is specifically authorized in a valid durable power of attorney that is executed by the vulnerable adult as the principal or in a valid trust instrument that is executed by the vulnerable adult as a settlor."

 

A position of trust and confidence not only applies to family members but also to persons who have assumed a duty to provide care for a vulnerable adult, persons who are in a fiduciary relationship with a vulnerable adult, and persons who are joint tenants or tenants in common with a vulnerable adult.  Fiduciary relationships include individuals acting pursuant to a financial power of attorney, as well as those acting as trustee, successor trustee or even co-trustee of a trust.

 

CivilCivil and Criminal Penalties

  

There are civil and criminal penalties for persons in a position of trust and confidence who financially exploit an incapacitated or vulnerable adult.  Civil penalties can include actual and treble damages.  Actual damages might include the amount of monies and assets stolen or used without benefitting the vulnerable or incapacitated owner.  In addition, the court has the power to order a person who has violated these statutes to forfeit all or a portion of their inheritance from the vulnerable adult.  It should also be noted that in 2008 the Arizona Court of Appeals found a financial exploitation claim survives the death of an incapacitated person, just as a financial exploitation claim survives the death of a vulnerable adult. A personal representative is permitted to bring a claim under APSA on behalf of the incapacitated or vulnerable adult.

 

 

ReportingReporting Suspected Abuse

 

If you suspect a person is being abused or exploited, there are a number of ways for you to take action and in some cases may be required under Arizona law to report such suspected abuse. For example, a person who has been appointed guardian or conservator of a vulnerable adult is required to report or cause a report to be made to the appropriate  superior court based on the county of residence within 48 hours if the guardian or conservator has a reasonable basis to believe that abuse, neglect or financial exploitation has occurred.  An agent holding a power of attorney for a vulnerable adult owes the same fiduciary duties as a guardian or conservator to a vulnerable adult.  Attorneys are also required to take certain steps when they suspect that a client may be a victim of elder abuse or exploitation.  However, it is more likely that a child, relative, friend or acquaintance is the person who is in the best position to identify or suspect that a person is being abused, neglected or exploited.  These individuals are in most cases not under any legal duty to report their suspicions, but such reports are invaluable in identifying elder abuse. 

 

 

ExampleExample

 

Last year, our firm was approached by a daughter of a 98 year old woman who had been diagnosed with advanced dementia and had recently signed several powers of attorney.  After talking with the daughter it was also discovered that her mother was being isolated from the family by another sibling and had developed a bedsore.  Our firm immediately filed a Petition for Emergency Guardianship of the mother (a conservatorship was not requested because the mother had fully funded her revocable trust).  

 

Upon filing, the sibling objected to the Petition claiming the mother had appointed him as Agent, Trustee and Personal Representative.  It was also discovered that the sibling facilitated a sale of real property owned by his mother and received almost $100,000 from the proceeds of the sale.  The sibling also took his mother to the bank to make large cash withdrawals.  Obviously our client was in a difficult position.  She wanted to protect her mother but she did not want to have her sibling disinherited or have him charged criminally.  Ultimately, our firm was able to negotiate a settlement with the sibling.  The sibling agreed to return all of the money he received from his mother with interest, in addition to paying all attorneys fees related to the case.  If our client had not come forward with her concerns, her mother could have faced years of abuse, neglect and financial exploitation. 

 

If you have any questions or concerns regarding how you can protect yourself and your loved ones, please contact our office.   In cases of emergencies, you can also contact Adult Protective Services or the police.
 
         

Laura Morrison Trujillo

ltrujillo@mclawfirm.com  

 

 

About Our Law Firm 

Margrave Celmins is a member of LawPact, which is an association of independent, business-oriented law firms in the U.S. and overseas.  Currently there are 54 member firms.  This is a terrific resource for clients who have legal matters in other states and abroad.  There are 28 states and 23 countries represented by member firms throughout Europe and in Canada, Mexico, Brazil, Argentina, India, Hong Kong and Australia.

 

Margrave Celmins, P.C.

8171 E. Indian Bend Rd., #101

Scottsdale, Arizona   85250

480-9944-2000

 
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