A recent Arizona Court of Appeals decision has an important lesson: Think twice before messing with Mom. She might fight back, and she might win. In Re Lindquist centers on Arizona’s vulnerable adult exploitation statute (A.R.S. § 46-456). But the more general message is one we’ve noted before: If you are a child trying to “help” your parent, tread carefully.
The Messiness Starts With Mom
Our story begins with Mom, Wanda Lindquist, born in ’42. (Not the woman pictured above, that’s a stock image to illustrate our story.) She has three sons Greg, Todd, and Kyle. The boys apparently don’t always see eye to eye.
In 2019, Wanda executed two sets of powers of attorney. Oldest son Greg supplied the first, signed in April, named him to manage her financial affairs. Youngest son Kyle downloaded a form, and Wanda signed that one in May. It named Kyle to manage Wanda’s finances.
Secrets like this are hard to keep. Greg found out and was not happy. As Wanda tells it, Greg and middle son Todd made a visit and “were both very intimidating . . . threatening me into doing what [G]reg wants or there will be hell to pay . . . .” (Greg, don’t mess with Mom.) Wanda was not happy. She was so unhappy that she went to the trouble of getting an Order of Protection against Greg. The Order prohibited Greg from visiting or contacting her. (See what we mean.)
Mom Gets a Scary Diagnosis
Then Wanda was diagnosed with Parkinson’s. In the court case, her doctor explained that the disease had not progressed—her mind was “sound” and she could “make medical and financial decisions for herself.”
Greg and Todd accused Kyle of “misappropriating” Wanda’s assets, and Greg filed a petition for guardian and conservator. He alleged that Wanda was incapacitated and “unable to manage her affairs” due to “cognitive impairment and reduced mental efficiency.” (Greg, don’t mess with Mom.) Wanda was not happy and opposed the petition. (Greg, see what we mean.) Her doctor again confirmed that Wanda could make appropriate judgments about her finances. What’s more, he said, she could live alone, drive a car, obtain food, and pay her own bills. A neurologist’s assistant reported “mild cognitive impairment.”
Wanda agreed to a temporary guardianship, which expired five weeks later. She moved to dismiss the conservatorship petition. Greg opposed that, lost, and then appealed. But the two settled—Greg dismissed his appeal; Wanda released the Order of Protection. Peace. But it was fleeting.
Greg Messes With Mom-Again
Six months later, Greg and Todd petitioned to file an exploitation claim against Kyle on Wanda’s behalf. (Greg, don’t mess with Mom.) Arizona’s exploitation statute (A.R.S. 46-456) allows any “interested person” to file an exploitation claim on behalf of a vulnerable adult if neither the vulnerable adult nor her appointed representatives have done so. But first, they must get an OK from the court. Wanda and Kyle, with separate attorneys, moved to dismiss the petition. They argued that Wanda was not a vulnerable adult so Greg and Todd could not jump in on her behalf. (See what we mean.) But the trial court sided with Greg and Todd! Wanda and Kyle appealed. (Greg, she’s not giving up.) Whether the trial court made a mistake in not finding Wanda “vulnerable” is the issue the ruling addresses.
The court reviews the exploitation statute and points out that the purpose is “to protect vulnerable adults from abuse, neglect and exploitation.” It notes that “vulnerable adult” is defined in the statute as “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 physical or mental impairment.” A.R.S. 46-451(A)(12)
Ruling Maps Out the Steps
The statute, the court says, designates three priority plaintiffs: 1) the vulnerable adult; then 2) his or her duly appointed conservator or personal representative; and then 3) any “interested person,” who can step into the vulnerable adult’s shoes to bring a lawsuit.
The decision says that for an “interested person” to sue, all three of the following must be true: 1) he or she is an “interested person”; 2) the person to be protected is “vulnerable,” and 3) the higher priority filers have not filed.
The court concludes that in this case, the trial court erred in failing to find that Wanda was “vulnerable” before granting Greg’s petition asking for permission to file the exploitation claim and sends the case back for that determination.
The ruling notes that the statute “was passed to protect vulnerable adults. . . . It was not passed to annoy or harass senior citizens who are not vulnerable . . . .”
The Boys Mess With Mom-Again
There’s yet another interesting part of the story. After the trial court granted their request to file, Greg and Todd did file an exploitation claim. (Guys, don’t mess with Mom.) But Wanda petitioned to substitute herself for Greg and Todd since she, as the supposed vulnerable adult, had priority to file the claim. She won; the court said Greg and Todd had not proved Wanda “lacked the capacity to act of her own behalf.”
Mom fought back, and she won.
Although this is a drama the centers on Wanda and her three boys, there are steps both she and Greg could have done to prevent the dispute or stop it before it spiraled.
Considerations for Mom (and Parents Like Her)
1) Consider an attorney to assist with your estate plan! A downloaded document is more vulnerable to challenge than one executed with the guidance of professional counsel. You have more witnesses on your side and likely documentary evidence in the form of notes from your attorney that support your ability to make choices.
2) Consider a neutral, third-party fiduciary. If you know your kids don’t get along, and you see them fighting over you, don’t select them to serve. Let a professional manage your affairs, and then the kids can all gang up on the professional. It might have the bonus of improving their relationships, too.
Considerations for Greg (and Children Like Him)
1) Consider respecting your parent’s wishes. People, so long as they have the capacity to do so, get to decide what they want. Once you take a position against a loved one, it can be difficult to get back in their good graces. Is the dispute worth losing the relationship forever?
2) Look at the evidence. Does the medical professionals’ testimony support your argument? Read the statutory definitions. Try to be realistic.
3) Be aware of the ripple effects. It has been established that Wanda is not vulnerable and does not lack capacity. She probably already wrote Greg and Todd out of her estate plan. Given the facts on the record, they’ll have a tough time trying to challenge that. Is the dispute worth losing your entire inheritance? Think twice before messing with Mom.