Monday, November 23, 2015

Personal Representatives of the Estate of a Vulnerable Adult Need to be Aware of Arizona’s Adult Protective Services Act

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 or 623.878.2222 or 623.878.2222.

Tuesday, November 10, 2015

It Begins: Arizona Restaurants/Bars Must Prepare for Tidal Wave of ADA Lawsuits

By: Lindsay G. Leavitt

Arizona is quickly joining the ranks of California, New York and Texas as a hotbed for lawsuits arising under the Americans with Disabilities Act (ADA). Last month, I blogged about (and have personally defended numerous hotel owners against) lawsuits filed by Theresa Brooke, a wheelchair bound Arizona woman who has sued more than 150 Arizona hotel owners for failing to provide wheelchair accessible pool lifts. Now, it appears another disabled serial plaintiff has emerged.

Santiago Abreu, a wheelchair bound individual who is a resident of Florida, has begun filing lawsuits against Phoenix-area restaurants alleging an assortment of ADA violations. Mr. Abreu is a self-admitted “tester,” which is a disabled person who travels around the country suing businesses open to the public that do not fully comply with the ADA. Some testers have filed thousands of lawsuits around the country.

Mr. Abreu has filed lawsuits against a number of well-known restaurants/bars in the greater Phoenix area, including Sanctuary Resort & Spa and Ra Sushi. Most of the alleged violations arise in the bar area and restrooms. For example, Mr. Abreu has alleged that the bar service counters are not wheelchair accessible and that certain elements of the restrooms (e.g., stalls, sinks and urinals) violate the ADA.

The violations alleged by Mr. Abreu do not appear to be quick or inexpensive to fix. Businesses must bring their buildings in compliance with the ADA only if it is “readily achievable” to do so. The ADA defines readily achievable as “easily accomplishable and able to be carried out without much difficulty or expense.” It is no surprise that plaintiffs and defendants often disagree on (and litigate) whether certain fixes are “readily achievable.”

A business facing a lawsuit brought by a “tester” like Mr. Abreu has several options to consider. The first step, however, is to seek the assistance of an experienced ADA compliance attorney.

Lindsay G. Leavitt is a business litigation and employment law attorney at Jennings, Strouss & Salmon, P.L.C. He regularly represents businesses in employment-related disputes and provides advice on preventative measures.

Tuesday, November 3, 2015

Jennings, Strouss & Salmon Ranked in 2016 “Best Law Firms” List


PHOENIX, Ariz. (November 3, 2015) – Jennings, Strouss & Salmon, P.L.C., a leading Phoenix-based law firm, has been ranked in the 2016 "Best Law Firms" list by U.S. News & World Report and Best Lawyers®. The firm received a Tier 1 national ranking for Energy Law, along with Phoenix and Washington, D.C. metropolitan rankings for 33 additional practice areas.

Firms included in the 2016 "Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a ranking signals a unique combination of quality law practice and breadth of legal expertise.

The 2016 Edition of "Best Law Firms” includes rankings in 74 national practice areas and 120 metropolitan-based practice areas.

The U.S. News – Best Lawyers “Best Law Firms” rankings, for the sixth consecutive year, are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. Clients and peers were asked to evaluate firms based on the following criteria: responsiveness, understanding of a business and its needs, cost-effectiveness, integrity and civility, as well as whether they would refer a matter to the firm and/or consider the firm a worthy competitor.

This year, in addition to the Tier 1 national ranking for Energy Law, Jennings Strouss was included in the metropolitan rankings for the following areas:


Administrative / Regulatory Law
Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law
Commercial Litigation
Corporate Law
Energy Law
International Trade and Finance Law
Litigation - Bankruptcy
Litigation - Construction
Litigation - Real Estate
Medical Malpractice Law - Defendants
Personal Injury Litigation - Defendants
Real Estate Law
Trusts & Estates Law

Washington DC
Energy Law


Construction Law
Corporate Governance Law
Employment Law - Management
Health Care Law
International Arbitration - Commercial
Labor Law - Management
Legal Malpractice Law – Defendants
Leveraged Buyouts and Private Equity Law
Litigation - Banking & Finance
Mergers & Acquisitions Law
Securities / Capital Markets Law
Tax Law


Banking and Finance Law
Business Organizations (including LLCs and Partnerships)
Eminent Domain and Condemnation Law
Ethics and Professional Responsibility Law
Litigation - Labor & Employment
Public Finance Law

About “Best Law Firms”
The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. To be eligible for a ranking, a law firm must have at least one lawyer listed in 20th Edition of The Best Lawyers in America© list for that particular location and specialty.
About U.S. News & World Report
U.S. News & World Report is a multimedia publisher of news, consumer advice, rankings and analysis. Focusing on Education, Health, Personal Finance, Travel, Cars and News & Opinion, has earned a reputation as the leading provider of consumer advice and analysis that helps its readers make informed life decisions. U.S. News & World Report's signature franchise includes its "Best" series of consumer advice guides and publications that include rankings of colleges, hospitals, mutual funds, cars and more.
About Jennings, Strouss & Salmon, P.L.C
Jennings, Strouss & Salmon, P.L.C., has been providing legal counsel for over 70 years through its offices in Phoenix and Peoria, Arizona; and Washington, D.C. The firm's primary areas of practice include agribusiness; bankruptcy, reorganization and creditors’ rights; construction; corporate and securities; employee benefits and pensions; energy; family law and domestic relations; health care; intellectual property; labor and employment; legal ethics; litigation; professional liability defense; real estate; surety and fidelity; tax; and trust and estates. For additional information please visit and follow us on LinkedIn, Facebook and Twitter.
The firm’s affiliate, B3 Strategies, assists clients with lobbying and public policy strategy at the local, state, and federal levels. For more information please visit