Berk & Moskowitz, P.C.

14220 N. Northsight Boulevard
Scottsdale, AZ 85260
United States
Phone: (480) 607-7900
Fax: (480) 607-7300

Elder Abuse Is Everyone’s Concern

Berk4Abuse of the most vulnerable of society is a concern for everyone. And when an elderly loved one is the victim, you may be left confused about the steps you should take to extract the elder from the abusive situation and make sure that he or she is left whole after the experience. Although elder law litigation may sound like an extreme measure, in some situations it is the correct response.

Elderly people of every gender, race and net worth experience abuse. Typically, the abuse is at the hands of someone the elder trusted most, so much of the abuse happens without detection. Family members and other caregivers can be the most frequent perpetrators of elder abuse. Elder abuse can take the form of physical abuse, financial abuse, neglect, abandonment, isolation or even abduction. Any time an elderly person suffers, whether physically or mentally, elder abuse is a real possibility. [Read more…]

Nursing Home Abuse Warning Signs

Berk2The unfortunate truth is that the nursing facilities that are supposed to serve and protect some of the most vulnerable members of society are sometimes the perpetrators of that abuse. Sometimes profit motive drives the abuse: short staffing and resulting infrequent contact with residents can leave the elderly just as physically and psychologically damaged as perpetrators who intentionally harm them. Intentional physical abuse is seldom merely the result of a single bad actor abusing a resident; systemic problems at a home may contribute to the abuse and neglect suffered by residents.

[Read more…]

Learn about the First North American Urban Civilization at the Deer Valley Rock Art Center

TeotihuacanFor a fascinating exhibit about the city of Teotihuacán, North America’s first urban civilization, visit Phoenix’s Deer Valley Rock Art Center. Predating the Aztecs, Teotihuacán was a city in central Mexico that featured apartment buildings, pyramids, beautiful murals. The city was constructed between 100 B.C. and 240 A.D.

The exhibit, titled  “Teotihuacán & ASU: Archaeology in Action,” features authentic artifacts and replicas of implements used by the city’s inhabitants over 1900 years ago. It runs through January 31, 2015.

The Deer Valley Rock Art Center is run by the Arizona State University’s School of Human Evolution and Social change. It features the largest collection of “Native American petroglyphs in the Phoenix Valley, so there’s a lot of history to take in. In addition to the archaeology museum, the center also features a 47-acre Sonoran Desert preserve. [Read more…]

Labor Day in Phoenix, AZ

Artlink First Fridays PhoenixLabor Day isn’t just a three-day cookout and party weekend in the Phoenix region this year. Check out Artlink First Fridays in downtown Phoenix, where over 70 galleries will display art for your enjoyment.

According to organizers, “Artlink, Inc. is one of the oldest, all-volunteer run, 501-C-3 arts organizations in Downtown Phoenix. Its mission is to maintain and enhance current regular events, including the monthly First Fridays art walk, the annual Art Detourself-guided tour, a Juried Exhibition and an art-related fundraiser.” Celebrating artistic expression sounds like a delightful way to spend a day commemorating workers!

Labor Day, which falls on September 1, 2014, has been an official federal holiday in the United States for 120 years. The holiday is “dedicated to the social and economic achievements of American workers.” As a federal holiday, non-essential government offices are closed to celebrate Labor Day. [Read more…]

Lou Reed Leaves $30 million—and Only a Will

Lou ReedLou Reed, famous for 70’s hits like “Walk on the Wild Side,” died on October 27, 2013, leaving behind an estate worth at least $30 million that generated around $20 million in income since he died. Wealth like that is often secured by a complex estate plan, designed to reduce the possibility of disputes and avoid probate and litigation.

Many celebrities spark massive probate litigation after they pass away by either planning too little for someone of their wealth or cutting someone out of the plan who thought they should be included. These cases often end up in trust litigation, since the wealthy often use revocable living trusts and irrevocable trusts as their preferred planning devices.

The strange thing about Lou Reed’s estate plan is that it was solely comprised of a will. According to news reports, Mr. Reed didn’t have even a revocable living trust.

So what’s the result for Mr. Reed’s surviving family members and loved ones? First, the process in probate court (called Surrogacy Court in New York, where Mr. Reed’s estate is being administered) is entirely public. Reporters, jealous members of his extended family, and unscrupulous people all have access to the particulars of Mr. Reed’s estate. [Read more…]

Rising Elder Abuse in Arizona

Elderly in ArizonaThe numbers of elder abuse cases in Arizona are increasing as the state’s retired population grows. Scams targeting the elderly may be the focus of news reports, but the reality of the situation is even sadder. The elderly are reportedly most often the victims of fraud perpetuated by family members, not strangers.

Unscrupulous family members may manipulate an older person to change their will to cut out other loved ones. Or a family member, or other caregiver, named as agent in a durable power of attorney may use his or her power to steal from the elderly person, leaving them financially and emotionally destitute.

According to Arizona Adult Protective Services (APS), for the fiscal year that ended June 30, 2013, APS received a total of over 11,000 – an all-time high –  reports of abuse, neglect or exploitation of vulnerable adults in Arizona.  Of those, over 3,100 involved financial exploitation – the theft or misappropriation of the vulnerable adult’s money or other assets to uses not solely for the benefit of the adult.  Family members were reported as the alleged perpetrators in about 34% of Arizona elder abuse cases.

Why do family members defraud their elderly relatives? This kind of behavior is typically motivated by greed.   “They feel entitled,” according to Angel Guzman, with Adult Protective Services.  But accelerating your inheritance isn’t just in bad taste: it’s illegal and can result in both criminal charges and elder law litigation, with substantial penalties. [Read more…]

Granting Relief to Caregivers: Hospice of the Valley wins Grant Money

AZ Dementia caregiversAs elder law practitioners, the staff and attorneys of Berk & Moskowitz understand the toll that caregivers may experience taking care of patients with dementia or Alzheimer’s. Many caregivers are willing family members with no formal training or medical backgrounds. Often, when a family member does have medical experience they are expected to drop paying work in order to remain actively participating in the care of an elderly, chronically ill, or otherwise vulnerable adult.

Caregivers who are able to stay at home with the patient provide a special kind of care, especially when the patient suffers from dementia. According to the Alzheimer’s Association, the impact that caring for someone with dementia has on caregivers heavily affects the caregiver in many areas, including finances, emotional resiliency, and overall well-being. “Due to the physical and emotional burden of caregiving, Alzheimer’s and dementia caregivers had $9.3 billion in additional health care costs of their own in 2013. Nearly 60 percent of Alzheimer’s and dementia caregivers rate the emotional stress of caregiving as high or very high, and more than one-third report symptoms of depression.” [Read more…]

Long term Care of Elderly and the Role of Informal Caregivers

Caregivers and Elder CareEvery family differs in its approach to caring for aging relatives.

Many families look to themselves to provide long term care as their parents, grandparents, aunts and uncles (etc.) age.  Indeed, according to statistics from the U.S. government’s Administration on Aging, “families are the major provider of long-term care, but research has shown that caregiving exacts a heavy emotional, physical, and financial toll.”  Caregivers have to juggle conflicting responsibilities and can experience a great deal of stress.  It is reported that nearly half of all caregivers are over the age of 50, “making them more vulnerable to a decline in their own health,” with up to one-third describing themselves as being in fair to poor health.

In light of these, and other, difficulties, it is the unfortunate reality that some families cannot provide long term care for an elderly relative themselves, possibly leaving the relative in a vulnerable or risky position.  Therefore, before family members reach the point of needing long term care or assistance, they should take steps to proactively plan and protect themselves.

If you or someone you know anticipates caring for an elderly or otherwise vulnerable adult, these tips from the Arizona Attorney General (via AARP) may be helpful to pass along. These tips are intended to help prevent abuse or exploitation of those relying on advanced long term care.

First, remember that “ that no one, at any age, should be the victim of violent, abusive, humiliating, or neglectful behavior.”  A few of the “dos” and “don’ts” include the following: [Read more…]

A Not-So-Happy Place on Earth: Walt Disney Family Trust Dispute

Disney Trust DisputeNo one wishes for the kinds of trust dispute and family trouble that one group of siblings from the Disney clan has experienced in recent years. The trust beneficiaries of one of Walt Disney’s daughters have become embroiled in a trust dispute as epic as any storm imagined by the prolific animator.

The story begins with the two daughters of Walt Disney, Diane and Sharon, who both went on to have children of their own. While Diane had seven children total, it is Sharon’s three children who have remained the center of controversy.

Sharon’s three children—the twins, Brad and Michelle, and a daughter, Victoria, whom she adopted with her first husband—each stood to gain a significant portion of their mother’s substantial trust. (This article appearing in The Hollywood Reporter, Esq. approximates the combined value of the Disney trusts today as being $400 million.)

The trust that Sharon Disney created for her children appears to function much like many family trusts do: staggered distributions over several age-milestones, specifically 35, 40, and 45 years of age along with an important caveat basing distribution on the beneficiaries’ money-management skill.

Two main problems have caused complication: the distribution clause and the fact that three separate trustees must all agree in order to make a distribution.

In addition, the objective enormity of the amount held in combined trust does nothing to simplify the tangled legal mess that the trust distribution has become.

Put another way the problems stem from the fact that, “Sharon empowered three trustees—including, at the time, ex-husband Bill and older sister Diane Disney Millerto withhold distributions in the event the children did not demonstrate ‘maturity and financial ability to manage and utilize such funds in a prudent and responsible manner.’”

The distribution clause contains ambiguous language that, as estate dispute attorneys find, is regularly a source of conflict for families, even without several multi-million dollar distributions. [Read more…]

Anti-Deficiency Statute Changes Speculative Homebuilder Shield

Anti-deficiency shield changesThe Southwest real estate and home construction industries continue to undergo fundamental changes.

Some observers of the past several years may perceive the altered landscape (no pun intended) as being more reactionary and overly cautious than necessary with normal market fluctuation. Other observers may take a more critical view, suggesting that the changes since 2008 amount to equalizing abnormal market imbalances.

In Arizona, that arguable imbalance can look like buyers getting stuck with underwater mortgages and deeds of trust on what was originally overvalued property, and sellers keeping a windfall from the original sale. But, Arizona’s anti-deficiency statutes have shielded many borrowers, including speculative home builders, from being sued after a foreclosure when there is a gap between what is owed and the foreclosure price or value of the property.

Not so as of April 2014. Some new changes shift the risk that the value of the property is less than the loan balance as of the time of foreclosure.  The new law also clarifies the rules to resolve real estate disputes when the bank backing the mortgage and the borrower/seller lock horns over a deal gone sour.

For loans originated after December 31, 2014, commercial home builders will no longer be shielded from liability during a foreclosure where the value of the property covered by the deed of trust is less than the loan balance.  This gap or difference is known as a deficiency. [Read more…]