Neglect or physical abuse are likely the first things that come to mind when an ordinary person hears about Adult Protective Services; however, Adult Protective Services (also known as “APS”) – which is the Arizona agency responsible for investigating exploitation of vulnerable adults – reviews thousands of claims of “exploitation of resources” every year. Other forms of abuse that are far less visible to outsiders may still be valid grounds for an APS investigation to begin. Exploitation of resources, which may be more widely categorized as “financial abuse” or “elder fraud” in popular culture, made up the single largest category of allegations the agency investigated in 2023 (with nearly 11,500 reports) [1].

Defined under A.R.S. § 46-451(A)(5), exploitation of a vulnerable adult is the improper or illegal use of the adult’s resources for another person’s profit or advantage. Actions which fall under the umbrella of exploitation include [2]:

• Taking money meant for a vulnerable adult for personal use (for example, receiving a social security check and using the funds in a way that does not benefit the intended recipient).
• Using a vulnerable adult’s bank information to make withdrawals without their knowledge or consent.
• Using a vulnerable adult’s power of attorney or guardianship/conservatorship authority to make self-serving financial decisions.
• Receiving unearned money from a vulnerable adult (such as overcharging for a service or performing an unnecessary service purely for unfair financial gain).

Anyone responsible for overseeing a vulnerable adult’s care and household, or who has access to their finances, must take care to avoid an allegation of exploitation caused by their “depriving the eligible adult of the ownership, use, benefit, or possession of [their] money, assets or property.” This charge is distinct from abuse and neglect and often arises in the context of disputes among heirs to the adult’s estate. Some allegations also occur when a vulnerable adult cannot remember or recite the nature of an agreement with a service provider—such as a housekeeper or contractor—leading to an investigation of the services provided and amounts charged.

Unfortunately, not every care provider has a written contract with their client, which can lead to uncertainty about the terms of the agreement and resultant payments. Even caregivers, household assistants, or other providers acting in good faith may be swept into an APS investigation if they have not kept accurate and clear records of their business dealings with a vulnerable adult. It may take substantial time and expense to determine whether any wrongdoing has occurred, much of which could have been avoided with greater care at the outset of the relationship.

On the APS registry, instances of financial exploitation are reported as aggregate amounts and do not have a minimum/maximum amount necessary to trigger a finding. This means that the same substantiation of a finding can be made over a $100 dispute or six-figure fraud; the essential element in proving this charge is that a purchases/use of funds was not made for the benefit of the vulnerable adult, notwithstanding the amount that was spent.

If APS proposes a finding of financial exploitation, the accused individual has the right to appeal the finding. The appeal must be made in writing within a strict deadline after notice of the proposed finding, so time is of the essence when involved in an APS investigation of any kind. Grounds for appeal may include challenging whether the adult was vulnerable to financial exploitation, whether the funds were used for the adult’s benefit, whether the services provided were agreed upon and billed fairly, etc. Each case is unique and requires attention to the details of what occurred—there is no “one size fits all” approach to investigations or administrative appeals.

Unlike a criminal case, there is no right to a publicly provided attorney for an administrative hearing regarding a registry case (even if a criminal case is happening concurrently). Each individual under investigation must decide whether to retain counsel for an APS Registry appeal, and the expense may not be justified under all circumstances. Consulting with an attorney as early as possible in the process—ideally, as soon as the investigation begins—will afford the greatest opportunity to succeed when fighting against a proposed Registry substantiation.

[1] APS Data Dashboard | Arizona Department of Economic Security (az.gov)

[2] Arizona Revised Statutes § 46-451 (2023) – Definitions; program goals :: 2023 Arizona Revised Statutes :: US Codes and Statutes :: US Law :: Justia

Markus Risinger is an attorney at Woodnick Law, PLLC and MLS faculty associate teaching administrative regulation at the ASU Sandra Day O’Connor College of Law. He practices in all aspects of child welfare matters, including Title 8 dependency/severance, Title 13 defense litigation, Title 25 parent and third-party rights, Title 41 administrative controversies, and appeals.

Mallory Scott is a 3L at the Sandra Day O’Connor College of Law at Arizona State University, and law clerk at Woodnick Law PLLC. While working as a clerk during the summer, she has the opportunity to work on real-world litigation, but also research topics of interest relating to the future practice of law. The practice values exploration into collateral topics that relate to families, especially their relevance to popular culture and media.