1. FINANCIAL EXPLOITATION AND CIVIL REMEDIES ASIMOU & ASSOCIATES, PLC 5050 NORTH 40TH STREET, STE. 220 PHOENIX, AZ 85018 602-604-0011 - PHONE 602-445-3686 - FAX WWW.ASIMOULAW.COM © 2016 ASIMOU & ASSOCIATES, PLC. ALL RIGHTS RESERVED.

2. WHO WE ARE Asimou & Associates, PLC, founded in 2000, is a litigation firm that focuses on commercial litigation and probate matters. Asimou & Associates, PLC has four attorneys, Thomas G. Asimou, Richard A. Alcorn(Of Counsel), Meagan M. Pollnow and Kaysey L. Fung. Asimou & Associates, PLC is dedicated to providing the highest quality of legal services to our clients. Our goal is to conclude each matter in a manner consistent with our client’s objectives and as timely and cost-effective as possible. We begin by listening to the client and gathering information in order to fully understand the facts, circumstances and issues surrounding a legal matter and to understand the client’s objectives. Thomas has practiced law for sixteen years, both as a solo practitioner and in a medium-sized Phoenix law firm. Over the course of his career, he has practiced commercial litigation, tax litigation, and fiduciary litigation. Prior to beginning his legal career, he received an LLM in Taxation that has resulted in the representation of clients with complex financial issues. He represented numerous financial institutions and banks involving breach of contract, business torts, tax disputes, and fiduciary disputes. Richard has practiced law for thirty-eight years, both in a small-sized law firm (ten lawyers or less) and a large-sized Seattle law firm (more than 120 lawyers). Richard’s practice has focused mainly on complex commercial litigation, including actions involving complex commercial transactions, breach of contract, banking law, misrepresentation, antitrust, consumer fraud, defamation, and litigation regarding state and federal statutes. Richard obtained his law degree and an MBA in accounting/finance from the University of Washington. Meagan obtained her law degree from the Arizona State University Sandra Day O’Connor College of law in 2011. While in law school, Ms. Pollnow worked for several non-profit and government agencies, and as a clinical student at the law school before joining Asimou & Associates in 2010. Meagan’s practice is focused on trust and estate litigation and elder law. Meagan is a member of Valley Leadership’s Class 34. She also is on the Board of the Arizona Behavioral Health Corporation, a non-profit organization that provides tenant-based rental assistance for persons with Serious Mental Illness. The firm also is pleased to announce the hiring of a new associate. Kaysey Fung, a 2015 graduate of the James E. Rogers College of Law at the University of Arizona, joined the firm as an associate in September 2015. She started at the firm as a law clerk in 2014 and is familiar with all aspects of the firm’s practice. Kaysey’s writing and analytical skills are exceptional. Our small size means that clients will get individualized and prompt attention in every case. Our small size also means that the attorneys working on our client’s case will have in-depth knowledge of every aspect of the case. Our philosophy is to thoroughly prepare every case in order to obtain the best resolution – whether that be a trial, mediation or arbitration. © 2016 ASIMOU & ASSOCIATES, PLC. ALL RIGHTS RESERVED.

3. INTRODUCTION This material is meant to provide a brief overview of some information regarding the issue of financial exploitation in civil litigation under applicable Arizona law in Maricopa County Superior Court. Some of this information may be routine practice in your field and other information may only apply in unique situations. Regardless, we hope that this material provides you with a little bit of insight as to the process of bringing a claim of financial exploitation through private counsel in the Maricopa County Superior Court. *******WARNING: The information provided by Asimou & Associates, PLC is intended to provide an overview of relevant points for educational purposes. The material provided, either through written materials or presentation is not legal advice and should not be relied up in lieu of consultation with appropriate legal advisors. No advice is being tendered; no professional services are being rendered; no contract or attorney-client is being established herein. Do not act upon any information presented herein. Asimou & Associates, PLC disclaims any and all liability for actions taken in reliance upon the contents of these materials and matters discussed in its presentation. As legal advice must be tailored to the specific circumstance of each case, please retain or consult with legal counsel if you require assistance. ******* © 2016 ASIMOU & ASSOCIATES, PLC. ALL RIGHTS RESERVED.

4. FINANCIAL EXPLOITATION DEFINED Under the Arizona Adult Protective Services Act or A.R.S. § 46-451, et seq., persons can be held criminally and liable for exploitation of a “vulnerable adult”. As defined under A.R.S. § 46-4541(A)(9), a “vulnerable adult” includes not only an incapacitated adult, but also “an individual who is eighteen years of age or older and who is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment.” In other words, an elderly adult without mental deficits can qualify as a “vulnerable adult.” Unlike Guardians, Conservators, Trustees or agents under a Power of Attorney, a person does not need to explicitly assume a fiduciary role to be found liable for Financial Exploitation or Elder Abuse. Also included are “de facto guardians” or “any person who takes possession of the person or a vulnerable adult, without right or lawful authority.” A de facto guardian “is subject to all of the responsibilities that attach to a legally appointed guardian.” (A.R.S. § 46-451(A)(3)). A “de facto conservator” is “any person who takes possession of the estate of a vulnerable adult without right or lawful authority.” A de facto conservator is subject to the same statutory requirements as a legally appointed conservator or trustee. (A.R.S. § 46-451(A)(2)). Even if the potential exploiter does not meet the statutory definitions of “de facto conservator” or “de facto guardian”, a person can be held liable for financial exploitation of a vulnerable adult if he or she is “a person who is in a position of trust and confidence to a vulnerable adult” who fails to “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” absent a few statutory exceptions. © 2016 ASIMOU & ASSOCIATES, PLC. ALL RIGHTS RESERVED.

5. HOW WE CAN HELP Evaluation and Assessment. We can accompany an officer or social worker on a home visit, or arrange for a licensed private fiduciary to accompany an officer on a home visit to determine whether it is appropriate to appoint a guardian and/or conservator to provide appropriate care to a vulnerable adult. Prevention. We can assist an officer in determining the need for, and potentially, petitioning for appointment of a Guardian and/or Conservator to prevent the financial exploitation of a vulnerable adult. Corrective Action and Continuing Oversight. The Maricopa County Superior Court will have continuing oversight over the actions of any Guardian and Conservator appointed by the Court. The Court can assess the needs of the vulnerable adult, including whether it is appropriate to pursue a claim of financial exploitation. © 2016 ASIMOU & ASSOCIATES, PLC. ALL RIGHTS RESERVED.

6. WHAT DOES FINANCIAL EXPLOITATION LOOK LIKE? The exploiters typically reside in the home with the vulnerable adult, either as caregivers, “companions” or adult children. Exploiters also may take the form of harassing phone calls claiming that the vulnerable adult has won the lottery or can save a village in Africa (Jamaican lottery scam). He or she may have taken control of vulnerable adult’s assets as agent on a power of attorney or as trustee of his or her trust. The vulnerable adult may not understand what has occurred or is embarrassed or in denial about the depletion of their assets. A vulnerable adult may feel like he or she has to “give in” to whoever is caring for them or risk losing the exploiter’s care, support or companionship. Exploiters can also be the vulnerable adult’s children. (See Estate of Domingo, recent Arizona Court of Appeals case decided November 3, 2015) Exploitation can be subtle, can include verbal or psychological abuse that is often overlooked. May be appropriate to asses the size and quality of the vulnerable adult’s social network (“How many people do you see each week?” or “How many people do you talk to on the telephone”), level of isolation, whether suffering from depression, anxiety or cognitive difficulties. (See “Elder Abuse”, article published recently (Nov. 12, 2015) in The New England Journal of Medicine) According to article in The New England Journal of Medicine, “functional impairment and poor physical health have consistently been shown to be associated with a greater risk of abuse among older persons, regardless of the cause of such limitations.” In other words, aside from financial exploitation, a vulnerable adult may be having other, more acute difficulties. Upon entry to the residence, is it tidy or disorganized? Can he identify his medications? Who is responsible for getting prescriptions refilled? When was his or her last doctor’s appointment? Can the adult identify their physician? Does it seem like she is able to cook her own meals? Who is paying the adult’s bills? These issues should be discussed without anyone present, especially if it is not clear if caregiver or relative is exploiting or abusing adult, or aiding or assisting in such exploitation. Remember the distinction between an “incapacitated adult” under Title 14 and a “vulnerable adult” under Title 46. © 2016 ASIMOU & ASSOCIATES, PLC. ALL RIGHTS RESERVED.

7. THE PROCESS OF FILING A CIVIL CLAIM OF FINANCIAL EXPLOITATION Aside from contacting Adult Protective Services, the Maricopa County Public Fiduciary and/or referring the case for criminal prosecution, there are options for civil/private causes of action: Contact appropriate family member(s) or enlist the aid of a licensed private fiduciary in petitioning the Maricopa County Superior Court to appoint a Guardian and Conservator for the vulnerable adult. A Conservator is appointed when the person in need of protection is unable to manage his or her estate and affairs for reasons such as mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, or chronic intoxication and that the person has property that will be wasted or dissipated unless proper management is provided. A Guardian is appointed to make decisions regarding a person’s healthcare and needs (not finances) when the person, because of a mental disease or defect, can no longer make decisions regarding his/her care. A Guardian can only be appointed by the Court. The Court requires clear and convincing evidence that: (1) the person for whom the guardian is sought is incapacitated; and (2) the appointment of a guardian is necessary to provide for the demonstrated needs of the incapacitated person. A Guardian and Conservator can bring a claim of financial exploitation on behalf of the vulnerable adult. If appropriate, a Guardian is able to physically remove a vulnerable adult from their caregiver/child/companion and place them in a safe environment. In some cases, a Trustee may have standing to bring a claim of financial exploitation to recoup assets back into an elder adult’s Trust that have been fraudulently transferred outside of the Trust. After the death of a vulnerable adult, a Personal Representative (Executor) can bring a claim for elder abuse or financial exploitation to recoup funds/assets to the vulnerable adult’s estate. © 2016 ASIMOU & ASSOCIATES, PLC. ALL RIGHTS RESERVED.

8. EXAMPLES OF CIVIL CLAIMS AND CLAIMS BROUGHT IN PROBATE COURT Examples to be provided. Can be detailed and set forth a separate Civil Complaint or consolidated into guardianship and conservatorship proceeding. Can be addressed to the Court in the form of a Petition for Instructions, especially if the apparent cost to recoup funds may exceed the benefit to the vulnerable adult and his or her estate. Can discuss exploitative acts in the initial Petition for Appointment as Guardian and Conservator. Related: Who pays for this and how much does it typically cost? © 2016 ASIMOU & ASSOCIATES, PLC. ALL RIGHTS RESERVED.

9. POTENTIAL REMEDIES FOR FINANCIAL EXPLOITATION IN A CIVIL CASE Remedies provided under the Adult Protective Service Act “A person who violates subsection A of this section or section 13-1802 (criminal statute), subsection B shall be subject to actual damages and reasonable costs and attorney fees in a civil action brought by or on behalf of a vulnerable adult and the court may award additional damages in an amount up to two times the amount of the actual damages.” (See A.R.S. § 46-456(B)). In other words, you can recover up to double of what you can prove the defendant stole from the vulnerable adult. Attorney’s fees are discretionary, not guaranteed. Under the Act, the Court may also Order the defendant to forfeit any interest in the vulnerable adult’s property, Will or Trust. © 2016 ASIMOU & ASSOCIATES, PLC. ALL RIGHTS RESERVED.

10. QUESTIONS & MORE INFORMATION Thank you for the opportunity to address the issue of financial exploitation in our senior community. The information provided in this presentation is a brief overview of the process of bringing a private/civil financial exploitation claim. To discuss a particular case or if you have additional questions, please contact: Thomas G. Asimou 602-604-0011 - phone 602-445-3686 - fax tom@asimoulaw.com © 2016 ASIMOU & ASSOCIATES, PLC. ALL RIGHTS RESERVED.

11. TERMINOLOGY Power of Attorney (See A.R.S. § 14-5501, et. seq.): A power of attorney is a written authorization to represent another person or to act on another’s behalf. The representation can include private affairs, business affairs, or other legal matters. The relationship is one of agency, which legally binds the principal and the person named as agent (or attorney-in-fact) to act in accordance and within the scope of the power of attorney. General Power of Attorney: Used when the grantor wants the agent to have the authority to act on his behalf in a wide variety of situations. This gives the agent complete authority in most situations, including personal finances, real and personal property, and a large range of business transactions. It does not confer authority over medical decisions.* Special Power of Attorney: This will give the agent the authority to act on behalf of the grantor in specific situations or functions only; such as a one- time business transaction or a specific sale of real and personal property. Durable power of attorney: Sometimes it may be necessary or preferable to create a durable power of attorney. A durable power of attorney is one that remains in effect, or only becomes effective, if and when one becomes disabled or incompetent. If one does not have a durable power of attorney, the power of attorney will automatically be revoked once the principal becomes incapacitated. Trustee (A.R.S. § 14-10101, et seq.)Typically, Trusts are administered without Court supervision. They are very popular because assets titled into a trust can be transferred upon death without a probate proceeding. If the client is currently serving as Trustee and is no longer sufficiently able to make informed decisions concerning his or her affairs, the terms of the Trust usually set forth under what conditions a successor trustee or co- trustee should be appointed. However, any Trustee or beneficiary can invoke the Court’s jurisdiction for instructions on how to administer the Trust. This includes petitioning the Court for confirmation or appointment as trustee, or instructions on how to administer the trust, or whether to sell a home titled to the trust. Guardian A Guardian is appointed to make decisions regarding a person’s healthcare and needs (not finances) when the person, because of a mental disease or defect, can no longer make decisions regarding his/her care. A Guardian can only be appointed by the Court. The Court requires clear and convincing evidence that: (1) the person for whom the guardian is sought is incapacitated; and (2) the appointment of a guardian is necessary to provide for the demonstrated needs of the incapacitated person. Most often, a Guardian is appointed when a person has lost their capacity to make decisions, but does not have a valid medical power of attorney or none at all. Guardians may also be appointed when one or more family members dispute who should have control over an incapacitated person’s healthcare. Conservator A Conservator is appointed when the person in need of protection is unable to manage his or her estate and affairs for reasons such as mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, or chronic intoxication and that the person has property that will be wasted or dissipated unless proper management is provided. A Conservator typically is appointed when a person has lost their capacity, either temporarily or permanently, and needs someone to preserve and protect their assets, pay bills, taxes, etc. The appointment of a Conservator may also be necessary either (a) when a person does not have a valid power of attorney; (b) everyone nominated as agent cannot act; (c) a person does not have a trust; or, (d) has assets outside of his or her trust that require preservation. Conservators may also be appointed when one or more family members dispute who should have control over an incapacitated person’s finances. © 2016 ASIMOU & ASSOCIATES, PLC. ALL RIGHTS RESERVED.