NewsArizona Supreme Court Holds That A Late-Appointed Personal Representative May Bring an Elder Abuse Claim On Behalf of A Deceased Victim’s Estate.

Mary Winn died on February 6, 1998, after residing at a nursing facility operated by Plaza Healthcare. More than four and one-half years later, but still within the applicable limitations period, Mary’s husband, George Winn, brought an Adult Protective Services Act (“APSA”) claim against Plaza on behalf of himself and Mary’s estate. On May 7, 2005, more than five years after Mary’s death, George was appointed personal representative of her estate, and moved to substitute himself, in his capacity as the estate’s personal representative, as the Plaintiff in the case against Plaza.

Plaza moved for summary judgment, arguing that A.R.S. § 14-3108(4), a probate code provision, precludes a personal representative appointed more than two years after the death of the decedent from prosecuting claims on behalf of the estate. The superior court granted the motion and the court of appeals affirmed.

On de novo review, the Supreme Court reversed, holding that “a late-appointed personal representative may bring an APSA claim pursuant to § 46-455(B) on behalf of a deceased victim’s estate provided that the limitations period on the claim has not run.” In so holding, the Court compared two Arizona statutes to determine if they “are inconsistent, and if so, which controls.” Section 46-455 of APSA “is clear” that APSA claims “shall not be limited or affected by the death of the incapacitated or vulnerable adult,” A.R.S. § 46-455(P), or “by any other civil remedy . . . or any other provision of law.” A.R.S. § 46-455(O). However, a provision of the probate code, § 14-3108(4), arguably limits the power of a late-appointed personal representative to pursue an APSA claim on behalf of the deceased victim’s estate. That statute provides that a personal representative appointed to represent an estate more than two years after the decedent’s death “has no right to possess estate assets . . . beyond that necessary to confirm title thereto in the rightful successors of the estate.”

The Court noted that its primary task in interpreting statutes is to give effect to the intent of the legislature, by examining first the words of the statutes at issue, as well as the policies behind them and the evils that they were designed to remedy. The Court determined that the “plain wording” of the APSA made clear the legislature’s intent to increase the remedies available to elder abuse victims “by providing that APSA claims proceed unimpeded by either the death of the elder abuse victim or limitations imposed by other laws.” The policy underlying APSA likewise “is apparent: to protect some of society’s most vulnerable persons from abuse, neglect, and exploitation.” And the evils sought to be remedied the Court also found “unmistakable.”

The Court relied heavily on a previous case in which it interpreted conflicting APSA and probate code provisions, In re Guardianship/Conservatorship of Denton, 190 Ariz. 152, 945 P.3d 1283 (1997). In Denton, the Court held that APSA pain and suffering damages may be recovered after the death of an elder abuse victim, contrary to a probate code provision finding that pain and suffering damages do not “survive the death of the person entitled thereto.” The Court in Denton relied on the same provisions of the APSA that the estate of Mary Winn relied on – A.R.S. § 46-455(O) and (P).

Justice Berch authored the opinion for a unanimous court.