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Torts: Adult Protective Services Act: Timing of Determination Adult is “Vulnerable”

Posted by Ted A. Schmidt | Mar 08, 2023 | 0 Comments

Lindquist v. Mathias, No. 1 CA-CV 22-0213 (App. Div. I, February 28, 2023) (J. Weinzweig)


Eighty year old Mother with Parkinson's disease has three adult children fighting over who should have power of attorney to manage her financial affairs. Mother fights and defeats attempt of two of her sons to have a guardian and conservator appointed for her. 

Subsequently these two sons petition court for leave to file a civil action under the Adult Protective Services Act [APSA] A.R.S. § 46-456 et. seq. against third son alleging Mother is a “vulnerable adult” being exploited by the third son. The trial court grants relief to two sons and denies Mother and third son's motion to dismiss finding a hearing would ultimately have to be had to determine if mother was indeed a “vulnerable adult.”

Thereafter the two sons filed a civil action against the third son for financial exploitation under the APSA. Subsequently, the trial court granted mother's petition to substitute into the case as the named plaintiff.

This action is Mother and third son's appeal of the trial court's order granting the two other sons the right to file a financial exploitation complaint under the APSA. The Arizona Court of Appeals reversed and remanded.

The plain language of § 46-456(G) requires 
the superior court to make three findings before
it grants an interested person's petition to sue 
on behalf of a vulnerable adult: (1) the petitioner 
must qualify as an “interested person” under A.R.S.
§ 14-1201(33), (2) the individual to be protected 
must be a “vulnerable adult,” and (3) neither the 
vulnerable adult nor “a duly appointed conservator 
or personal representative” must have filed 
an action against the proposed defendant under 
§ 46-456(B).

The case is remanded to the trial court where an evidentiary hearing must first be held to determine if Mother is a “vulnerable adult” under § 46-451(A)(12) before a determination that an action may be brought by her sons on her behalf under the APSA.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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