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Thursday, August 21, 2014

Omaha Nebraska Y Asalto sexual de un Recursos de Niños

Jueves, 21 de agosto 2014


Escuelas Públicas de Omaha no reportó acusaciones de abuso



Hablando de niños - Nebraska Alianza del Abogado Niño


Niño capítulo Abuso Sexual de "Por los números" - Illinois
El Informe Gunderson: Abuso Sexual Infantil
Los informes de abuso infantil o negligencia Manual para Padres


Publicado por JESSICA LYNN Hepner en 15:00

Etiquetas: CPS , JESSICA LYNN Hepner , Omaha Nebraska y asalto sexual de un niño de Recursos , lo que todo padre debe saber

Abuso Meth Allegations- Mis Recomendaciones

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Jueves, 21 de agosto 2014


Cuando tengo un padre venga a mí y me pregunto lo que tienen que hacer en lo que respecta a Servicios de Protección del Niño, y sus hijos, con las acusaciones de ser de la utilización de Meth, la respuesta es muy fácil. En primer lugar los padres deben sentarse y realmente pensar en lo que realmente quieren y lo que es en el mejor interés del niño. ¿Es el padre dispuesto a renunciar a todo y cualquier uso de drogas ilegales hasta que el niño o los niños tienen 18 años de edad? Porque si no es así, entonces tienen que luchar por esos niños. Porque incluso cuando los padres se hicieron cargo de los niños y los niños no fueron abusados ​​o descuidados, ni los niños quieren para nada, si usted elige utilizar Meth, usted tiene que darse cuenta de que es sólo una cuestión de tiempo antes de CPS obtendrá en la imagen. Y eso de ahí es donde se pone a los niños en peligro. Por conocimiento y voluntad de continuar con el uso de metanfetamina, sabiendo que van a venir y es en los hogares de cuidado de crianza o de grupo que los niños están en peligro, de abuso, negligencia e incluso asalto sexual. No se puede mejorar el sistema de todo lo que puedes hacer, es hacer lo que se requiere de usted y permanecer el infierno fuera de Meth. Porque si lo haces no son los únicos que realmente estás lastimando son sus hijos.

Publicado por JESSICA LYNN Hepner en 15:25

Etiquetas: abuso , CPS , JESSICA LYNN HEPNER , Meth abuso Allegations- Mi Recomendaciones , negligencia , QUÉ todo padre debe saber

Meth Abuse Allegations- My Recommendations

When I have a parent come to me and ask me what they need to do in regards to Child Protection Services, and their children, with the allegations being of using Meth, the answer is so very easy.  First of all the parent must sit down and really think about what they really want and what is in the best interest of the child.  Is the parent ready to give up any and all illegal drug use until the child or children are 18 years old?  Because if they are not, then they need to fight for those kids.  Because even when the parents took care of the kids and the kids were not abused or neglected, nor did the kids want for anything, if you chose to use Meth, you have to realize that it is just a matter of time before CPS will get in the picture.  And that right there is where you put the kids in danger.  By knowingly and willingly continuing with your Meth use, knowing they will come and it is in foster care or group homes that the kids are in danger, of abuse, neglect and even sexual assault.  You cannot beat the system all you can do, is to do what is required of you and stay the hell off of Meth.  Because if you don’t the only ones you’re really hurting are your children.

Omaha Nebraska And Sexual Assault Of A Child Resources


Omaha Public School Did Not Report Abuse Allegations



Speaking of Children - Nebraska Alliance of Child Advocate


Child Sexual Abuse chapter from "By the Numbers" - Illinois
The Gunderson Report: Child Sexual Abuse


Reports of Child Abuse or Neglect Parent Handbook


Do everything possible to free American reporter Steven Sotloff from ISIS in Syria and save his life.



Sign the petition


Wednesday, August 20, 2014



Mesa mon convicted in her daughter's 2011 death

Posted: Aug 13, 2014 1:59 PM Updated: Aug 13, 2014 2:00 PM

PHOENIX (AP) - A Mesa woman has been convicted of first-degree murder in the 2011 death of her 4-year-old daughter.

Maricopa County prosecutors say jurors also found 30-year-old Crystal Carimbocas guilty Wednesday on two counts of child abuse.

She's scheduled to be sentenced Sept. 18.

Authorities say Anays Chenal Carimbocas was taken to a Mesa hospital in May 2011 with fatal injuries that her mother's boyfriend said incurred when the girl fell into an apartment complex's pool.

Prosecutors say the pool was closed for renovation on the day of the incident.

They also say an autopsy revealed injuries that occurred long before the day of the girl's death including skull fractures, a lacerated liver, broken ribs and numerous bruises.

Crystal Carimbocas and her 24-year-old boyfriend, Jose Gonzalez-Dominguez, were tried separately in the case.

Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.



Mesa preschool employee pleads guilty to abuse

Posted: Aug 14, 2014 1:36 PM Updated: Aug 14, 2014 1:36 PM

PHOENIX (AP) - A Mesa preschool employee accused of child abuse after police found a 2-year-old girl restrained in a sleeping area has changed her plea to guilty.

Maricopa County prosecutors say 22-year-old Lauren Miller pleaded guilty Thursday to three counts of child abuse. Her sentencing is scheduled for Sept. 18.

Miller was arrested last October on suspicion of two counts of child abuse and two counts of unlawful imprisonment and pleaded not guilty.

She was accused of wrapping the girl in a blanket and tying the ends of the cloth so tightly that the toddler couldn't move.

A co-worker at the Cholla Montessori child-care facility took photos of the tied-up girl and sent them to Mesa police.

Authorities say the toddler didn't need medical attention and was turned over to her parents.

Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


Mesa man convicted in death of girlfriend's child


Posted: Aug 14, 2014 5:12 PM Updated: Aug 14, 2014 5:12 PM

PHOENIX (AP) - A Mesa man has been convicted of first-degree murder in the 2011 death of his girlfriend's 4-year-old daughter.

Maricopa County prosecutors say 24-year-old Jose Luis Gonzalez-Dominguez also was found guilty Thursday of five counts of child abuse. The trial's aggravation phase begins Aug. 19.

Authorities say Anays Chenal Carimbocas was taken to a Mesa hospital in May 2011 with fatal injuries that Gonzalez-Dominguez said occurred when she fell into an apartment complex's pool.

The county Medical Examiner's Office ruled the girl's death was from blunt force trauma. An autopsy revealed previous injuries that included skull fractures, broken ribs, a lacerated liver and numerous bruises.

The girl's mother, 30-year-old Crystal Carimbocas, was convicted of first-degree murder and two counts of child abuse Wednesday. She's scheduled to be sentenced on Sept. 18.

Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.




Goodyear woman accused of trying to drown her baby


Posted: Aug 19, 2014 12:48 PM Updated: Aug 19, 2014 12:48 PM

GOODYEAR, Ariz. (AP) - Authorities say a Goodyear woman is in custody for allegedly trying to drown her baby daughter.

Goodyear police say 28-year-old Phoeteama Janiece Neal is being held on a $1 million bond on suspicion of attempted first-degree murder.

Officers say a possible drowning at a home was reported about 1:35 p.m. Monday.

The 20-month-old girl was taken to a Phoenix hospital, where she remains in extremely critical condition.

Detectives say Neal learned earlier Monday that her daughter was to be relinquished to the baby's father at the end of this month.

It was unclear Tuesday if Neal has a lawyer yet.

Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.









Tuesday, August 19, 2014

“I Do Not Consent”

93-year old Evelyn Schwartz says, “I do not consent.” while Cuyahoga County Adult Protective Services tries to take her freedom and her home

Evelyn is fighting for her liberty against Adult Protective Services (APS). She did not ask for this unwarranted intrusion into her life. In fact she refused them.
Her physician of 29-years confirms that Evelyn, despite her age, is competent and does not need a guardian or protective care. APS is determined, in the face of no supporting evidence of their claims, to move forward to take control over Evelyn’s person and estate. If APS is successful Evelyn will be taken out of the comfort and security of her home that costs her practically nothing to be placed forcefully in an adult care facility consisting of one small room that will cost between $3000 and $7,000 monthly and give the guardian a plausible excuse to ravage her life savings and sell her home to pay for. This is what Evelyn does not consent to.
For the past 15-years, Evelyn has had a live-in caregiver who she has been pleased with for nearly 15 years. Evelyn will be the first to tell you that she enjoys excellent care and Dean’s home cooking all these years which has contributed to her good health that is confirmed by her physician. Years ago, Evelyn put into place a Living Will with an Executrix and Power of Attorney to administer her remaining affairs upon her death. Several friends who care about her and for her surround Evelyn. Evidenced by this notice.
Problems with APS began almost one-year ago when Evelyn’s care-giver suffered a heart attack. Between a couple of Mayfield police officers, a social worker and a governmental system Evelyn found herself caught up “in the system” with a myriad of APS staffers intruding into her life and going so far as to have her made a ward of the court in a hearing fraught with lies, misstatements and innuendos. Evelyn has terminated this attorney who was not protecting Evelyn, but in fact, was swiftly ushering Evelyn through the system – on her way to being placed into an assisted-living facility under the care custody and control of the state and against her will.

A court case is still pending. Evelyn and friends hope that media will bring attention to Evelyn’s plight and the untruthful, over-stepping by Adult Protective Services. The Internet shows that similar situations are happening to the elderly homeowners across the United States. Evelyn Needs your help now. Shine a bright light on this one.


93-year old Evelyn Schwartz says, “I do not consent.” while Cuyahoga County Adult Protective Services tries to take her freedom

Submitted by savcash on Sun, 10/18/2009 - 03:24.


Press Release




Email a-team [at] stratos [dot] net

Attention: NEWS DESK

Send Reporter and Photographer / Videographer

Media Help Needed!

93-year old Evelyn Schwartz says, “I do not consent.” while Cuyahoga County Adult Protective Services tries to take her freedom and her home

Evelyn is fighting for her liberty against Adult Protective Services (APS). She did not ask for this unwarranted intrusion into her life. In fact she refused them.

Her physician of 29-years confirms that Evelyn, despite her age, is competent and does not need a guardian or protective care.   APS is determined, in the face of no supporting evidence of their claims, to move forward to take control over Evelyn’s person and estate. If APS is successful Evelyn will be taken out of the comfort and security of her home that costs her practically nothing to be placed forcefully in an adult care facility consisting of one small room that will cost between $3000 and $7,000 monthly and give the guardian a plausible excuse to ravage her life savings and sell her home to pay for. This is what Evelyn does not consent to.

For the past 15-years, Evelyn has had a live-in caregiver who she has been pleased with for nearly 15 years.   Evelyn will be the first to tell you that she enjoys excellent care and Dean’s home cooking all these years which has contributed to her good health that is confirmed by her physician.   Years ago, Evelyn put into place a Living Will with an Executrix and Power of Attorney to administer her remaining affairs upon her death. Several friends who care about her and for her surround Evelyn. Evidenced by this notice.

Problems with APS began almost one-year ago when Evelyn’s care-giver suffered a heart attack.   Between a couple of Mayfield police officers, a social worker and a governmental system Evelyn found herself caught up “in the system” with a myriad of APS staffers intruding into her life and going so far as to have her made a ward of the court in a hearing fraught with lies, misstatements and innuendos.   Evelyn has terminated this attorney who was not protecting Evelyn, but in fact, was swiftly ushering Evelyn through the system – on her way to being placed into an assisted-living facility under the care custody and control of the state and against her will.

A court case is still pending. Evelyn and friends hope that media will bring attention to Evelyn’s plight and the untruthful, over-stepping by Adult Protective Services. The Internet shows that similar situations are happening to the elderly homeowners across the United States. Evelyn Needs your help now. Shine a bright light on this one.

( categories:


Open Press Release

Submitted by lmcshane on Sun, 10/18/2009 - 11:33.

  Hi Betty--just a warning that your posts will be scrutinized by some of the REALNEO administrators here (and rightfully scrutinized), because we have been viciously spammed for our open content policy.

But, Betty, I will give you and your intentions the benefit of the doubt for this important story, showing the loss of our civil rights in America.  We have the right to be left alone and the woman's story posted originally here- merits special attention.

This site also offers a "media" legitimacy not necessarily offered by REALNEO.

I was in Columbus recently at the Ohio Elections Commission and a man who had been slandered in the press was asking to have his good name cleared by the person who had printed misinformation.  The slandered man noted that the press does not always choose to print the information submitted unless it is a paid advertisement.  This site offers some option to submit a "press release."  SEE http://www.prlog.org/us/

THANK YOU for calling this site to my attention! (although it looks like it is plagued with drek...)

my opinions do not necessarily reflect the opinions of my employer, my spouse, my cat, my neighbors, my extended family or anyone I happen to acknowledge on the street, bus, etc.

Schwartz story is a lead for spam to come

Submitted by Jeff Buster on Sun, 10/18/2009 - 11:23.

New user Savcash has re-posted this  Schwartz-tossed-out-of-her-home story to make savcash's entry to realneo seem innocuous and thus distract attention from spam to come from savcash in a second post very soon.   Realneo has seen this type of attempt to camouflage the purpose of a new user. we will see.

"Dean also called another friend, Betty Brown"

Submitted by Norm Roulet on Sun, 10/18/2009 - 11:38.

Betty, please forgive Jeff Buster - he went to Harvard and that made him a bit of a pompous asshole. He is also severely lead poisoned. If he had bothered to review your user acount information (which he is able to do, as an administrator), read any of your material, or looked at your many web resources, he would have realized you are a friend of a victim of a horrible government oppressing poor old people, which Jeff will soon be.

You've given me much to learn and read about - keep bringing us up the curve here as we are generally a caring and intelligent lot, even if not all open to enlightenment outside our little Ivy Towers.

Disrupt IT

With all due respect , Betty

Submitted by Jeff Buster on Sun, 10/18/2009 - 12:29.

With all due respect , Betty Brown is not the new user, savcash is the new user - at least on my computer screen.  savcash has this payday loan link on their realneo bio.  Also on savcash's realneo bio is the information "Sell caskets, graveliners, markers, urns direct to the public. All funeral goods, USA made, delivered all over, at a huge discount. Also am in the crime scene cleanup trade."  

Maybe I am missing what others see as the authentic Betty Brown connection.   What authenticates this savcash post as one from Betty Brown?

Please lead this horse to the water....

okay, we can do this

Submitted by savcash on Sun, 10/18/2009 - 12:46.

BB is savcash I assure you. Yes, I posted the link to http://www.ateammasters.com - funny how of the 6 divisions there u pick on one, and incorrectly mention it as a payday loan link (it is a biz loan to those biz that take credit cards, factoring the funds).

Regardless, yes, the rest I put up on the bio, about me. If I should have put up my personal bio, in all honesty, at that late hour I wasn't in the mood, and having not checked others bios (more time at a late hour) I was hesitated to do so.

I have spoke to Guy a few weeks ago, about the APS and issues, and he went to my website and lifted the page

http://www.wetheprosepeople and posted it here, neat, lots of views.

But Jeff, so your q can be fully answered, if you had clicked onto the http://ateammasters.com/accountscash.htm link, u will see my pic, of BB, now I will go post a pic in my bio, so u can see, one and the same, let me know if that thirst (a good thing) is satisfied, smile, Betty B

Look at Betty's open and honest User Profile #8255

Submitted by Norm Roulet on Sun, 10/18/2009 - 12:50.

REALNEO member Savcash is member number 8255, and her user profile is here and quite complete:



View recent blog entries
Member for
9 hours 51 min


Personal Interests

family, church, go cart track, government over-reaching, retail sales funeral products

Economy community membership


First Name
Last Name
A Team Masters
Organization URL
Skype Account

Sell caskets, graveliners, markers, urns direct to the public. All funeral goods, USA made, delivered all over, at a huge discount. Also am in the crime scene cleanup trade.

Buddy List

Buddy actions

JeffB, as an admin you can select "edit" and view Betty's email address, which is not the typical spammer set-up. If you visit the website linked from the profile, you see it is authentic to the user, and extensive. That the user intertests do not interest you does not invalidate the authenticity or value of the user, who is clearly in fact a human named Betty Brown, who seems good and in pursuit of social justice for people in distress.

I intend to follow up on this story with Betty.

Disrupt IT

no pic was permittted

Submitted by savcash on Sun, 10/18/2009 - 13:00.

humm... I like to think I can figure out web stuff pretty easy, however, in trying to upload a pic of 100by 100 this is the message I get------

  • The selected file /var/www/html/sites/default/files/tmp/tmp_uwaw15 could not be uploaded, because the destination sites/realneo.us/files/pictures/picture-8255.jpg is not properly configured.
  • Failed to upload the picture image; the pictures directory doesn't exist or is not writable.

[///] not sure how to overcome that?? Jeff, pls lead this horse to water here. LOL.

Thanks Norm, hey, this gives me a chance to inform people hahaaa, on a subject u are right, some just glance over.

Good day, Betty B.

Different Jeff - S - for tech support

Submitted by Norm Roulet on Sun, 10/18/2009 - 13:44.

Jeff Schuler is our tech guru and he will need to look at this issue - to make sure he sees it (and any admin/tech issues), send a message about the upload issue through the contact form here: http://realneo.us/contact... it sounds like a configuration issue that must be handled by admin.

BTW, you are doing a great job using the site - welcome to REALNEO... a very free, public, cooperative, common law kind of place. I see you will add lots of value to the community!

Disrupt IT

thanks for all the replies, (I think ;)

Submitted by savcash on Sun, 10/18/2009 - 12:35.

No spam from me --- maybe an overload of information, but all to a great cause. Helping a woman who did nothing wrong, and a way to do it, with the County Grand Jury ( http://www.countygrandjury.org )

Evelyn is a sweet-heart of a lady, and the APS is really like the worst and I mean worst office one wants to mess with.

If posting a shorter version of the same info here was a no-no, well, guess that'd be only because someone is such a good sleuth they found it over there, grin.  However, getting the word out for the assist I believe topps the d/posts. Thank you for the defense too, yep, a good friend. Having her permission to tell this was step number one.

Nice welcome here, and I thank you all. With the story of Evelyn and her plight is another as mentioned the horrible gov/oppressing older people  - but also the rouge cops that think they can take people's liberty and freedom for granted as well, but that is another story.

The issues right now are handling the Probate court and their attack on Evelyn. They have court ordered her to go get a second doc evaluation and another hearing (Dec 3rd) before a judge this time instead of a magistrate - such power they think they can weild around - and do daily I suspect, all because they have delt with assumed content for ages.

Well, using the commom law way, we have sued the "Gangsters" and now await to see what comes of that as well.

Chow, Betty

Betty, I am very interested in your causes and processes

Submitted by Norm Roulet on Sun, 10/18/2009 - 13:17.

Linked from your diverse website, which seems to offend Jeff B., I reviewed what is posted in the business cash advance area at http://ateammasters.com/accountscash.htm and it seems legit and useful - I'd like to see how this may help a business I know is in need of a cash infusion - contact me at norm [at] realneo [dot] us, Betty.

I am also reading a book linked at your We The Pro Se People area, which is fascinating... I have a friend who defended himself well with such understanding, when facing serious criminal charges - absolutely essential knowledge for all world citizens... especially Americans.

Jeff, check out the free book there... 6 pg Book, print it :) How I Clobbered Every Bureaucratic Cash-Confiscatory Agency Known To Man Kind By Mary Elizabeth Croft A++ (PDF)

Lots of Harvard folk behind this mess...

Disrupt IT

I know the world expert on cognition and aging in real NEO

Submitted by Norm Roulet on Sun, 10/18/2009 - 13:22.

You want Dr. Peter Whitehouse to provide the second opinion. I am sure he will do that... he is generally a good person and doctor who understands healthy aging and has the respect of local authority, as he knows far more than they.

Disrupt IT

I know the world expert on cognition and aging in real NEO

Submitted by savcash on Sun, 10/18/2009 - 16:48.


Thanks Norm, for all, did go to doc's site, will see about calling him, just to see if he has any ideas to start.  I did email tech too, thxs.

(And for the high fives) Regards, Betty B.

A site you might wish to look at too, common law 'mentor' and lots of info is at http://www.williamduff.com  and another one is http://www.1215.org I think u will find interesting. Off his site ["If you make yourselves sheep, the wolves will eat you." -- Benjamin Franklin
Our Mission: Through the courts, encouraging the Government to obey the law.]

I also suggest contacting Rob Hilton at McGregor

Submitted by Norm Roulet on Sun, 10/18/2009 - 17:33.

By posting this on REALNEO, you have informed many people in the region about this situation, including people at all levels of government and throughout the media. You've also informed a great group of citizens.

In addition to all you have done, and contacting Peter Whitehouse, I suggest you contact Ron Hilton.

Rob Hilton is President of the McGregor Foundation, which is very focused on helping seniors age successfully at home. Get in touch with him and tell him how broken the system is for Evelyn, and ask for help from his foundation to address the larger problem, which seems to include broken enforcement processes that are putting capable people in hursing homes.

That is so 20th century - I believe Hilton is supportive of moving seniors in this region into the 21st century of healthy aging at home, at far lower cost to society.

Rob Hilton - rob [dot] hilton [at] mcgregoramasa [dot] org

Regarding Peter Whitehouse, he may also be able to involve Evelyn in his work with intergenerational learning, and story-telling, as every 90-something has much to offer the youngest generation... get in touch with him beyond getting a second opinion.

Peter Whitehouse - whitehouse [dot] peter [at] gmail [dot] com

Send each a link to your posting on REALNEO - http://realneo.us/content/93-year-old-evelyn-schwartz-says-%E2%80%9Ci-do...

They know us well.

Disrupt IT

Savcash - county grand jury

Submitted by Jeff Buster on Sun, 10/18/2009 - 21:32.

Hello Savcash,

I still aren't buyin' your veracity here on Realneo

Please explain the relevance of county grand jury issues with old folks being deprived of their homes.

I do give you credit for writing a good game so far.  

best, jeffb


Submitted by westward on Sun, 10/18/2009 - 13:20.

Going to Harvard doesn't make one a pompous asshole, Norm. Please rethink this slur.


My dad went to Harvard - I'll see if he agrees

Submitted by Norm Roulet on Sun, 10/18/2009 - 13:27.

I don't make an absolute assumption that all people associated with Harvard are pompous assholes, but I personally believe the probability of being a pompous asshole increases with association with Harvard.

Hard one to prove, one way or another, as the terms pompous, asshole, and associated with Harvard are open to great interpretation.

I'll see what my dad thinks about Harvard's impact on social development of associated individuals - he went there and is a psychiatrist... I believe the pattern has been one of self-anointed elitism leading to a tendency for pompousness and assholeness, and the fall of human civilization.

Disrupt IT

Boys will be boys...

Submitted by lmcshane on Sun, 10/18/2009 - 11:53.

Meanwhile, I TRY to be a little more on the nice side--here:) JeffB is a warm and fuzzy guy and so is NormR.  We all tend to be a little addled here.  Carry on.

(I am thinking the PR site is just another smokescreen--REALNEO is still the best site out there for posting your original content and retaining your right to the content--upon, further reading, this is a scary policy: http://www.prlog.org/tos.html )

my opinions do not necessarily reflect the opinions of my employer, my spouse, my cat, my neighbors, my extended family or anyone I happen to acknowledge on the street, bus, etc.

Well, I am a firm believer

Submitted by jerleen1 on Sun, 10/18/2009 - 14:20.

Well, I am a firm believer in being left alone.  As long as an individual has proper care, is warm, has food, all the necessities, why would anybody in their right mind want to up root them from their home and move them to a place they do not want to be.  MONEY - MONEY - MONEY.

For some ungodly reason, everybody is of the opinion that being by yourself is unnatural or not good - do you know that for some people, solitude is a welcomed guest.  Not everybody is bored or lonely or lost.

If this lady is happy what gives?

being happy with one's own choices

Submitted by savcash on Sun, 10/18/2009 - 16:32.

Thanks jerleen,  this guardianship issue and Adult Protective (what a laugh) services was something I too was in the dark about before this landed in my lap.  It is happening all over the states....this is just one example.


Elderly couple (yea a 67 and 70 yr old) kidnapped by Texas Adult Protective Services
• Elderly Couple Won't Lose House
• Elderly Couple's House Set for Sale


....just for the record when seniors like this couple with no immediate family are deemed to be wards of the state heres what happens to your property,cash-homes all assetts....
ONCE the nursing facility goes and empties your life savings {CASH-STOCKS ETC} then they take your home and sell it and the money goes to the nursing home.. 
A True nightmare, travisty of justice for sure, as there is none here.

Evelyn hasn't been alone, she has a caregiver, the sister-in-law dislikes him and believes Evelyn should donate the house to the church instead of willing it to Dean, who has faithfully taken care of Evelyn and the house for over 15 yrs....and filed a complaint. APS has no reason to do what they are doing. They did as mentioned before now, appoint a date and a judge for Evelyn to go to a court ordered second evaluation...our question is, on what grounds do they take this step??

Why would she need to comply? She has done nothing wrong and now she is court ordered? AND if she complies and does the second eval. and passes with flying colors (which we are sure she will) if shows consent to the Probate court, to APS to make them believe they can rule over her life!! What is to stop them from coming back in 6 months or a yr and order another one?? If u don't go, they have the guns and the muscle to come and drag her away and proceed to put the guardian's name on her cds, bank accounts and grant him authority to sell her home to pay for the nursing home!!

We are working at using the common law to stop this, to expose these gangsters for the greed and wrong they are doing, please see http://www.countygrandjury.org and see if you have an interest there to assist. I did a second notice here


on this.

Regards, Betty

I could be wrong, but isn't

Submitted by ward14resident on Sun, 10/18/2009 - 17:19.

I could be wrong, but isn't there a way to prevent this type of 'takeover' from happening to the elderly?  I though if a person appointed a power of attorney that appointed person would be the advocate for the elderly person if cases such as this one occurred.  What am I missing here?  My mother is 91 years old and she has had a power of attorney for many years.  She wanted to 'appoint' someone to 'help' her if she became unable to make decisions for herself, someone that would know what she would want and make sure it was done.  Someone please explain this grand jury stuff to me.  What can we do to help his elderly woman?  What is savcash asking us to do?

short answer now, more later on grand jury

Submitted by savcash on Sun, 10/18/2009 - 23:19.

Hi Ward,

One of the problems with the APS issues here, is that her POA had moved out of state, and she didn't have a local one (in over a yr) so after they started with her (after her stay in a nursing home due to gall stones) I became aware of what was going on. Her s-i-l is at the root of all her problems - and she wanted to be named POA or her son, as well. Evelyn was wise, and didn't want that, fearing the truth, a nursing home would be coming up right quick in her future, as the sister in law has issues with who should inherit Evelyn's home. (No kids). Anyway, Evelyn made me her durable Power Of Atty last month, and although APS had been permitted to visit the house prior to this, to be sure she wasn't being exploited, abused or in need, and they went through everything and found nothing wrong, they still set a hearing for guardianship. Then I entered the pic, and still, now after this they want another doc evaluation, which shouldn't be needed - it is just the wheels have started rolling, an atty paid $41.00 to be her guardian, and even against a doctor's recommendation she need no guardian and she simply needs to contiue on her lifestyle as former, they have no lawful way out, and they are squarming. Trying to - well, actually, using a court order to do a second evaluation, is abuse of their 'powers' and overstepping their authorities. She doens't consent, and if she consents now, there may be no end in sight. See this other youtube http://www.youtube.com/watch?v=7z2mZUB-Kck&feature=player_embedded

---in part---copy--

Murray Feingold is old enough to retire. He has been a Postal
worker for over forty years. He holds a full time position, in addition to working extensive overtime.

Murray was happy for all those years until he was introduced to the judicial system in 2000. The landlord of the building he had been living in for the prior ten years refused to make what Murray considered necessary repairs, so Murray resorted to 'self help' and withheld a portion of the rent. The apartment that Murray was living in was rent controlled, so it is easy to understand why the landlord decided to start eviction proceedings.

Instead of eviction, Murray was placed under guardianship by Hon.
Anthony Cutrona Justice of the Supreme Court in Kings County, Brooklyn, NY in March of 2001 in order to protect him. This is when Murray says his life turned into a nightmare. When a
guardian is appointed for a person, all their civil rights are lost. Murray could no longer control his own money. The court ordered that all of Murray's salary, including all overtime pay must be sent to the guardian, a company ironically called Self Help Community Services, Inc. Each week, the guardian returns $325 which he and his wife are expected to live on.

[///] To read rest go to link above and read, and view video as well. It is terribly hard to get out of the system once in, and to be cut loose once they think they get control or consent.

I read all Guy Black on here went thru, and seen he didn't let them in at the start, like Evelyn did, and he still had a heck of a time removing their name from the APS lists. Once let in, it is even worse, because they have assumed consent, until u flat out state enough, and she did, several times, but they are not listening.

The brief details I would offer here about the County Grand Jury wouldn't do u justice in gaining answers to that question, so I am going to let William Duff (of the http://www.countygrandjury.org website) come in and go over that with you all.  Please visit the website as well.  Except to tell you that:

  • those who join would benefit from the experience of learning, in some depth, the operations of governments and common law.
  • they would  contribute to a very worthy cause and gain alot of self satisfaction from time well spent.
  • You would experience working with up to 25 other people of different backgrounds, each one having a different opinion, but working for the same goal to better the County and perhaps be an answer to people's plights.

(Jeff, smile, are we dancing? I am ligiet, and not leading anyone down any rabbit holes I swear. The q about the g/jury will be answered in full by Mr. Duff when he gets his password so he can respond.)

Regards, Betty

william duff to sell us

Submitted by westward on Mon, 10/19/2009 - 00:23.

I don't blog at work since I work at work. I am hoping to be at work when or if Mr. Duff comes on to enlighten us (or to sell us). Here is text from his home page. At each of the links there is another link to donate to the cause if you want.


Now that you recognize the nature of your domain and your dominion over it the real work begins when you attempt to apply these principles to actions taken against you by governments and their subdivisions and agents attempts to compel or prohibit your choice of action respecting subject matter that exists solely within your own private domain.  You now at least have a solid foundation upon which to proceed. 

Now that you know how you are supposed to be treated by your trusted office holder, you are going to find out that officer friendly is not respecting that.  Then you will find out that the local muni court is not going to respect that either.  After you get rammed through that court and find that nothing you told them or showed them has changed their mind, you appeal and find the very same deaf ear in the constitutionally created county court.  You will invariably come away from that journey with a bad taste in your mouth and the feeling that you are a subject rather than a free man or woman.  Don't be dismayed, it happens to nearly everyone and it doesn't seem to matter whether you declare that you are one of the sovereign people, or that you accept their charges for value, or that you have reserved your rights under UCC 1-308 or any of the other ingenious patriot assertions afoot on the internet. 

When I am pretty sure officer friendly has failed to respect my right of action, the muni court is not going to back me up as it should and I am about to be waylaid in the de novo appeal court, you can be sure I have given fair notice to officer friendly, the prosecutors, and the judges of the courts describing my right of action and his/her wrong doing .  Invariably they will ignore that notice. So have I wasted my time and paper by noticing them?  Probably not, in that it is well settled law that prior notice is sufficient evidence that they are aware of the lawful boundary of their grant of power respecting the office they hold.  When they ignore the notice and act beyond their authority they do so, not as an innocent party doing their duty but one who is, with willful and wanton intent, exceeding the confines of their office of trust.   That creates a couple of problems for them; first the act itself, when it causes a harm, is now a crime.  A crime is an intentional act that inures another, and second, causes them to lose subject matter jurisdiction and their further acts eject them from their office of trust respecting the immediate matter.  Now they are private citizens pretending to be acting with the authority of law (under color of law) and their governmental immunity is stripped from them.  That fact is made clear by the prior notice whether the court is willing to recognize it or not.  Of course we know; courts are willing to commit crimes in order to protect their fellow office holders.  We also know this happens far more than not.

The reason our faithful office holders ignore our claim to freedom is because over many generations, the courts have claimed that the "General Welfare" authority of the Fed and State as written into the constitutions provide them with the power to compel or prohibit actions done by the individual people, even where no harm is associated, as it defines is in the best interest of the public (all the people collectively).  Did you watch the G. Edward Griffin video about the collective?  If you didn't, go back and watch it now.

While it is in our public interest not to injury one another it is clearly against public policy to take the freedom of one of us just in case one of us may injure someone.  This is clearly a collectivist concept and in America Socialism is a crime, as is the case with this general welfare claim of power ignoring property rights retained by the individual people respecting their own private life, liberty and property where no intent to injure is apparent.  Both are socialist elements and both are crimes in this American society.  Your neighbors, and maybe even you, have been convinced these crimes are necessary for your health, safety, morals, and welfare.  In America Socialism is a crime and every office holder that promotes or acquiesces to it is a criminal and must be brought to justice for that crime if we are to remain a free people.  It just isn't' the duty of the government to protect your neighbor from your acts.......... it is your duty to protect your neighbor from your acts and their duty to protect you from their acts and non-compliance with that duty is addressed one controversy at a time as injuries occur instead of allowing government to presume a non existent controversy and punish everyone. 

This is why the courts will ignore you and every other office holder will not assist you in protecting your property rights .  Fortunately, the rule of law in this land is still in your favor but you will have to pitch in and help enforce it as the courts no longer will.  As such, we must remind the courts of their duty and fortunately there is a lawful way to bind them to the rule of law.  Thank Roger Elvick and Bill Thornton for recognizing it after this entire society has forgotten.  The Great Charter of the Common law as altered for the nature of this society holds our salvation as it was intended to secure our rightful authority over government when the subject matter is your life, your liberty and your property.

At this point you will be well informed by Angela Starks conference with guest Bill Thornton, publisher/researcher of www.1215.org warning:  this is 4 hours of easy to understand common law application.  You will miss a lot if you miss this. 


Submitted by billduff on Mon, 10/19/2009 - 13:26.

I am assuming that you are at work now.  Not sure what that means exactly.  Possibly that you will not have to read this if it comes while you work?  Hmmmm.

I get that you and many on this group are skeptical of new people and new ideas.  I actually share that disability.  I also recognize that a reasonable skepticism is a good thing.  I emphasize reasonable.

It appears you have chosen an exerpt from my website where I offer knowlege about things that i have carefully researched and think need to be shared.  I did not notice any criticism of the exerpt however your one and only comment was that I would ask you and others to support my effort through a voluntary consideration.  Did you notice that nothing is withheld and conditioned on that consideration?  You didn't point that out if you did.

In pursuit of clarity, respecting this post and several other, the www.williamduff.com website is describing the unassailable nature of your property interest in your life, liberty and property and by contrast pointing out how our trusted office holders fail to recognize that fact.  It further suggests solutions to convincing that office holder this it is very important that they both recognize and respect those property rights.  In fact, according to the rule of law,  office holders are bound by oath or affirmation to recognize and respect those property rights and when they fail to do so that act renders them unqualified to continue in the office of trust.  As I am sure you and the people on this group already know, that fact has been lost for some generations and our trusted office holders are more than happy to ignore the law of this land for the benefits they get by being in everyones business nearly all the time.  does Revenue Farming come to mind here?

On the williamduff website I have provided everyone with specific knowledge supporting each in their individualism and proving beyond any doubt what the boundaries between government and individuals is.  Countygrandjury.org is not a teaching tool.  It is an action tool.  It provides everyone a place to come together and take action that is both lawful and necessary.

In case any of you had missed it, our government has for generations blocked the people from any capacity to resist them.  What the average person recognizes is that "you can't fight city hall".  and so they get in line and let government do pretty much anything it wants to do.  Further, in case any of you had missed it, there is a huge movement of individuals in this country that are sick to death of one intrusion after another by government people.  Schwartz is just one in tens fo thousands of such intrusions that occur annually.  Probate is big business.  Revenue farming is bigger business.  The court appointed attorney (probate gang member) summed it up in a letter to schwartz:  'The hearing didn't go well for you.  At this point you have no option to a court appointed guardian other than you appointing me your conservator' (paraphrased)

is that how you want your last months and years to be?  Where did Adult protective Services get the standing to apply on Schwartz's behalf for the guardian?  Or the court to declare Schwartz a ward of the court?  It is simple to say; wow, bummer and then go about your business largely uneffected.  I created the countygrandjury.org largly because the attorney was right.  There was no mechanism that could stop this probate gang.

The countygrandjury is a tool that you, in Ohio, can use to say no to the big business Probate thugs.  It is you that must make that statement, not me.  the website is far from complete but it is working well enough for you to join it and find others in your county so that you can come together as "Sureties of the Peace" and demand justice and then enforce your demand with a writ or bill that is as official as anything the government does.  In fact, it is more authoritative.

Betty Brown is informing you of a travesty that is happening now and asking you to take a moment from your lives to set it right and she is telling you a way to accomplish that.

What do I get out of it?  Its free to join now and will be until the entire site is ready for its grand opening......   there has been some conversation about getting a $5 annual fee for membership at some time in the future but nothing has been decided.  for me, I could use some help shouldering this burden.  Healty skeptism is a good thing it is also a good excuse for too many.


Welcome - well said - thank you - I'll help

Submitted by Norm Roulet on Mon, 10/19/2009 - 13:51.

Welcome to REALNEO. I find all of your insight powerful and important. I had a friend who was very experienced with common law explain all this to me, about ten years ago, and it took me an entire evening to really understand... months and years for certain things to sink in - and I am still largely ignorant - don't expect people to grasp all this overnight.

Use realneo to educate and engage us further... offer the common law perspectives on the events around us.

I'd like to meet with Evelyn and learn more about her situation and how she may be helped. I'll share her story on the Internet and spread that as far and wide as possible, if she likes.

I'll be glad to assist any of you with social computing and information technology, although you seem accomplished with that.

I will contact Peter Whitehouse and Rob Hilton to ask them to help Evelyn, if she agrees to that.

I know many other people who may help - Commissioner Jones comes to mind.

Let me know how you want to proceed.

Disrupt IT

greetings and thank you

Submitted by billduff on Mon, 10/19/2009 - 14:47.

Your assistance will be appreciated by betty and eve.  I know it will...... 

here is what needs to be done...........  everyone in Cuyago (sp?) county that can hear this message needs to become a member of the www.countygrandjury.org ......... once there are more than 25 it will be possible to select a panel of 25 from that group of volunteers......  remember, there is only one condition to being a panel member ..... that is that you agree to protrect the life, liberty and property of the owner of that life, liberty and property..........  from all that would take those things without consent. 

I have read several of your posts to betty and i do appreciate your willingness to understand and help.  with respect to fulfilling the courts order for eve to be retested.............. forget it......... she is not going to retest with one of the probate gangs lackies.......... 

Eve has filed a complaint with the county court.  The complaint is constructed as a "court of record that is proceeding according to the course of the common law".   structuring the lawsuit in this way deprives the county judge (the magistrate) from having discretion to make any ruling or judgment without the consent of the "tribunal".(see www.1215.org for full details on how to operate such a common law court action......... thank bill thornton and Roger Elvick for remembering this for us.  That tribunal will most likely issue a writ of prohibition to the probate court to cease and desist its action against eve.  We expect the county court to treat this like it is a joke because it believes that the common law has been replaced by the Statutory law which is patently untrue.  as such, there will be a battle to enforce the judgment of the tribunal in eves suit........ 

What this means is, that even though there is an action underway to force probate to quit its action against eve, that action may very well result in other actions during which time the probate court will hammer home its intent..........   that being the case, something else must be presented to stop that railroading..... that is where the "Sureties fo the Peace" (countygrandjury members) come in........  once the panel investigates the facts and the panel members decide to return an indictment, writ of prohibition, bill of presentment...... or nothing at all.......... I assume the facts will support a writ of prohibition based on my deep knowledge of the case...... in any event..... the four forman will present that writ or presentment to the probate court and to the Adult protective services attorney and to the county court, whereupon demand will be made for compliance and response evidenceing that compliance.

If the courts think you are kidding,,,,,,,,, more action can and should be taken....... 

how is that for an overview?  there is a lot between the lines there...... but the journey is neither time consuming or risky for members...... and the whole matter is handled in a very informal way......

I will help all i can to help with documents documentation of authority adn so on........... betty and eve will provide the facts as they stand now............. 

wdd is not a salesman.


Submitted by westward on Sun, 10/18/2009 - 23:25.

Now you mention that you have the POA. A 2d opinion is SOP, and should be done ASAP.

Thank you for the

Submitted by ward14resident on Sun, 10/18/2009 - 23:30.

Thank you for the explanation Betty, and for the links.

The best Washington DC

Submitted by taby on Thu, 07/29/2010 - 15:05.

The best Washington DC lawyers are caught in big cases and the congressmen have a great lawyer behind them to be much easier to do their business .


Eve’s Saga

1.  Against Her Will


2.Court ordered removal of Evelyn to the nearest hospital


3. Adult Protective Services, Probate court + a wannabe Guardian try 'ordering' Evelyn


4. Conservator not needed


Court ordered removal of Evelyn to the nearest hospital


County Grand Jury dot Org to hear deceased Evelyn Schwartz complaint.wmv


Eve has a home & a brain,'They are breaking me down'


Eve continues..."I Need Dean"


Uploaded on Dec 18, 2009

This was made on 11/20, the day Eve found out about the court order to remove her to a hosp. We didn't put it up prior, however there now have been over 10,000 views on our videos and 60
uploads -videos made of this subject, so now I am sharing this as well.
We didn't want to make this about Dean, yet from the start the probate gang has done just that.
Eve's (who is still being captive nursing home - next court date is 1/07) love & respect for him shows thru here, and it is all due to his good care of her for nearly 14 years. The things that have happened to remove Dean out of the picture, lies told, and now trumped up criminal charges.
Dean had a (for 2 months) live-in g/f who he had known for over a yr. - a 53 yr old Russian who we now find out didn't have a green card. Ozada came home drunk & cursing..Dean told her he wasn't having this in front of Evelyn and tore up the marriage license. She hit him in the forehead with a TV remote control, he bleeds, as he is coming out of the bathroom, she tried kicking him in his privates. He puts up his leg to protect that area, her kick hits his shin, and she falls and breaks her ankle in two places. Short story, he was arrested, charged with felonious assault, bonds out of jail after 4 days. Linda and I took care of Eve at her home those 4 days, around the clock. Just Wednesday we find he was indicted for added bogus charges, domestic violence, kidnapping and possession of a gun under a disability. Man, first, he never caused this, and those charges added?? Shocking!
When he was bond out he was also restricted by a TPO not to go to his home, even tho O didn't live there now. To this day - I am going into detail here to show at what lengths are being taken to remove Dean from the picture.
Not only is Evelyn spending a small fortune in legal fees to get her out of this "MESS" they are using this event of 11/13 w/Ozada to trump up charges. Dean will be forced to use a public defender....unless someone reading this has any ideas? Pro bono offer of assistance?
We have no idea where the kidnapping charge came from either. When Dean engaged the police to escort him to his house so he could get some of his clothes and stuff, 2 cops were there illegally searching his kitchen while he was in his b/room bagging his clothes.
His friend Gary went to the p/dep the next day to claim his gun (found up in the cold air return-out of sight) that he had left there over 1 1/2 yrs ago. They wouldn't give it to him because when he told them he purchased it at a gun show and didn't have the serial numbers......cops also went in Dean's freezer too....no warrant yet removed stuff from his home. I called the FBI yesterday, leaving a complaint about these outrageous actions. To investigate the Mayfield Heights police dept.
Anyone wanting details that might be able to offer assistance, please, PLEASE email me. Or
Evelyn S. C/O Dean Marinpietri
PO Box 24524


Eve has a home & a brain,'They are breaking me down'

Uploaded on Dec 24, 2009

This is the last part of the video taken 11/20, the day Eve found out she was court ordered to the nearest hosp, by force if necessary. Please see the other videos off my channel detailing the whole tragic situation. Of Adult Protective Services assault on this 93 yr old woman, who feels (and is) being treated like a common criminal, when all along, Evelyn has done nothing wrong.
is the play-list of videos that we did (11) for a total of over 60 - caring people who feel this UN-justice of all of this. They have made other videos (well worth watching, heart warming and from the bottom of their hearts. ) What if this were someone in your family? It very well can be. If we don't stop this, and they (this Probate Gang) get away with sealing Eve's liberty and assets, and people don't step up to help, look out for your elders next.
See the site, and please join, as this is a lawful way for the PEOPLE to have a voice.
See the whole "Saga of Evelyn in Legal land" on this page, with docs and details - nine months of this seemingly endless stalking of APS on Eve. When there are lots of people out there who need the government - they are AWOL. Yet, here in this case, Eve clearly has a good support team in place.
Other issues are at play, her care-giver of over 14 years had some "history" in the past, and hid nothing, as he does today as well. Evelyn knew of everything, and had no problems with Dean. You can see from other videos, they have a close attachment and treat each other like Aunt and Nephew, a loving family.
APS and this Probate gang it appears, are intent on playing dirty, and the abuse of tax-payers dollars here is terrible. They have no over-sight, answer to no one. Laws need to be implemented, changed and used to only help people in need. Since starting down this road, we have seen others, heard horror stories of the abuse of power - and seen cases where clearly people needed help, and didn't get it from APS.
We have received cards and letter of support (and money toward the legal costs). If you would like to contact us with any of the above, (or other horror stories as well) it would be at:
Evelyn S. C/O Dean Marinpietri
PO Box 24524
Mayfield Heights, Ohio 44124
Evelyn is still in the nursing home, speaking w/her atty, and misses us all. No phone even, no visits from any of as as the intermediate guardian 'rules'. We wish her, best as can be in these circumstances, to be well, and happy holidays.
God Bless, and Merry Christmas to all from
Betty, Dean, Linda and Bill


  • Standard YouTube License



County Grand Jury dot Org to hear deceased Evelyn Schwartz complaint.wmv

Adult Protective Services, Probate court + a wannabe Guardian try 'ordering' Evelyn

Elder abuse, neglect rampant in US

Mon May 9, 2011 9:41PM

Mike Kellerman, Press TV, Washington





They are a small but growing movement called the National Association to stop Guardian Abuse.

They say the disabled and elderly are Being prayed upon by the legal system, by crooked lawyers and courts Who they say scam millions of dollars by having older people declared Guardians of the courts depriving them and their families of their rights and taking their assets.
Protesting in front of the Justice Department, they met with a few members of Congress demanding something be done.
With millions Of baby boomers turning into senior citizens now, they're warning that Billions of dollars will be stolen from the elderly and their families By probate courts which they are claiming conspire with lawyers and state agencies like adult services to rob older people of their homes and Savings often declaring them without proper evidence, incompetent to handle their own financial affairs.
It's a big business they say, lawyers getting rich…
Its an assault on the elderly and their golden years says the group Citing case after case of the judicial system collaborating to put elderly Or disable people in a conservatorship status with the courts giving The lawyers and courts , without family having a say, complete control over an elderly person's life savings.
With the aging of the US population in record numbers over the next5 years, the baby boomers, they say that unless what they call a corrupt system is fixed, millions will be robbed of all they own by unscrupulous lawyers, social workers, corrupt probate courts, and the state agencies who are supposed to be protecting the elderly, not abusing them.





Top Tucson Attorneys Committed To Representing Defendants and Plaintiffs in False Claims Actions


The False Claims Act (also known as a "Qui Tam" action) allows private citizens to sue on behalf of the Federal government whenever the government has been defrauded by contractors doing business with government entities. In return, the private citizen is rewarded with a portion of the recovered sums. It is an important tool to help safeguard money from the taxpayers and help fight against fraud.

The experienced attorneys in Tucson at Heurlin Sherlock are proud to be at the forefront of helping clients protect and recover taxpayer expenditures through False Claim Act filings. We have been involved with False Claim Act actions involving entities such as Federal Contractors, Defense Contractors, and Highway/Construction Contractors.

How Does The False Claims Act Work?

The False Claims Act originated during the American Civil War (and has also been referred to as the "Lincoln Act") and has since been modified throughout the years. It prevents any of the following actions against the Federal government:

  • Presenting a false claim;
  • Making or using a false record in furtherance of a false claim;
  • Using a certified receipt with intent to defraud the U.S.;
  • Possessing property or money which belongs to the U.S. and failing to deliver all of it;
  • Using a false record or statement material to an obligation to pay the U.S.;
  • Concealing or avoiding an obligation to pay the U.S.;
  • Purchasing public property from a federal employee who was not authorized to sell it;
  • Conspiring to commit any of the actions described above.

The False Claims Act does not apply to tax fraud cases, which are covered under separate laws and IRS regulations.

The Act requires a detailed process for filing. Citizens cannot file False Act Claims on their own. They must be represented by an attorney. The lawyers of Heurlin Sherlock are well-versed in procedures concerning the False Claims Act and can assist you with any such claims.

The complaint must originally be filed under seal with the court, and all evidence must be disclosed to the Department of Justice. The government must then investigate the claim and decide if it wants to intervene in the case, or have it dismissed altogether. (Remember, the private citizen is acting on behalf of the government's interests in a False Claims Act.)

If the government fails to intervene or have the case dismissed, the citizen filing the complaint is free to sue on behalf of the government for violations of the False Claims Act.

Any defendant found liable under the False Claims Act may be responsible for up to three times the amount of actual damages alleged in the complaint, plus statutory penalties of up to $10,000. A citizen who successfully sues under the Act on behalf of the government is entitled to an award which can range from 10% to 30% of the total proceeds (depending on a number of factors), plus any attorneys fees and litigation costs.

Why Doesn't The Government Just Sue On Its Own Behalf In False Claims Act Cases?

The government has limited resources. As a result, it has to pick and choose its battles carefully. With the amount of transactions the Government conducts with private contractors for its various functions, it has neither the time nor the personnel to investigate every potential allegation of fraud against it. The reason for the False Claims Act is to provide incentives for private citizens to fill the gap and be a financial watchdog on the government's behalf.

Defending Your Company From A Wrongful False Claims Act Case

If a disgruntled former employee files a untrue False Claims Act against your company, it is critical that you engage experienced lawyers to assist in your investigation, the handling of government subpoenas and inquiries, and litigating the case if necessary.

Contact Our Tucson Attorneys For Your False Claims Act Case Today

If you know of or suspect a case concerning government fraud or actions which fall under the False Claims Act, or if your company is the subject of a False Claim Act allegation, contact our offices today to receive a prompt response from one of our experienced Arizona attorneys.



What Evidence Do We Need to Bring Action Against People Who Take Advantage of Elderly Persons?

Financial Exploitation of the Elderly: Elements and Remedies

March 1, 2011

This Preventive Law Alert was written by: Thomas J. Murphy and John F. Goodson


Our firm has elected to use Tom Murphy to handle litigation for probate, guardianship, conservatorship and financial exploitation proceedings. Tom will assist us in educating clients, perspective clients and the general public in understanding some of the issues. Recent laws in some states have recognized elder abuse, financial exploitation of the elderly, abuse of general powers of attorney and other issues where elderly persons have been abused. More and more of our population is living longer and we are finding more people susceptible to this type of abuse. It is important as an element of preventive law to assist family members identify when this type of abuse is occurring and bring it to the attention of legal counsel before it gets out of control. We have reviewed and concurred on the points discussed in this Wealth Preservation and Preventive Law Study. Elder abuse is more prevalent; therefore we want the family and friends of the elderly to identify when it is occurring so as to take action to prevent it from occurring. If it has occurred, take action to recover the financial losses as the result of fraud, physical abuse, chicanery and a myriad of evil actions that are discussed in this study.

Financial Exploitation — Factual Issues

Financial exploitation — what is it?

Financial exploitation is not easy to spot since much of what is going on is not readily apparent. The exploited person is often embarrassed or afraid to notify family members much less report the matter to the police. Yet, it is also easy to jump to conclusions when in fact Mom or Dad are doing exactly what they want with their funds but the children or other family members do not approve. Always remember that is Mom and/or Dad's money to with as they please, to include doing stupid things with it.

The studies on financial exploitation, particularly when done by a family member or close friend, are of very limited use since all of the authorities on this topic agree that exploitation is greatly underreported, resulting in some very sketchy figures on the extent of the problem. Michael J. Tueth, "Exposing Financial Exploitation of Impaired Elderly Persons", American Journal of Geriatric Psychiatry, May 2000; Hall, Hall & Chapman, "Exploitation of the Elderly: Undue Influence As A Form of Elder Abuse", Clinical Geriatrics, February 2005.

Financial exploitation — how to spot it

There are two common threads in all of the financial exploitation cases I have dealt with. One common feature is the aspect of secrecy. No one outside of the exploiter and exploitee is aware of the situation as it is occurring. The other common feature is either isolation or domination of the exploited person by the exploiter.

Much of the literature emphasizes tell-tale signs that are ridiculously obvious but, in my experience, seldom seen. A typical example set forth in the literature is a child with no apparent source of income who is living extravagantly. But such obvious, blatant examples are rare. Exploiters do not want to call attention to themselves. Secrecy and lulling other family members into a sense of complacency is key. More typical in my experience has been:

Preventing or greatly limiting access to the residence

Family members must call ahead to visit with Mom. Or the visits keep getting cancelled at the last minute. Or they can only occur at inconvenient times, such as early weekday mornings. Or the visiting child is never allowed to be alone with Mom, either in the home or taken out for a meal or shopping.

Preventing or greatly limiting access to the telephone

Very similar tactics. Mom is sleeping and cannot come to the phone. Or the exploiter insists on being on the line with Mom.

Unpaid bills or increased credit card activity

Most elderly people are very scrupulous about paying bills on time and keeping debt to a minimum. Unpaid bills may be indicative of the fact that Mom or Dad have relinquished control over their finances and the fact that the bills are not being paid may indicate that money that should be available to pay them is not available. Why? And who is making this determination? Likewise, credit card activity is a likely tipoff. Look to see where the charges are taking place — fancy restaurants or bars that Mom or Dad would never frequent? Chic or high-end clothing stores where it is unlikely Mom or Dad would ever go or purchase anything? Charges for baby clothes or other charges for young children when Mom and Dad have none of their own?


Another danger sign is increased ATM activity — this is not the way the elderly handle their finances. It is a common tactic for the more savvy exploiter since they figure that cash is harder to trace.

Missing appointments

Are Mom and Dad's needs being met? Are they regularly visiting their doctor? Is Mom making her hair appointments?

Ending long-term relationships

Is there a new attorney, doctor, accountant or financial advisor in place of the professionals that Mom and Dad have used for years? There are several reasons why exploiters use this method. One is that they are afraid that the long-term advisor who knows many of the family members may report their suspicions to the family. It is also easier to hide sudden changes in finances when a new advisor is brought on without adequate knowledge of Mom and Dad's financial history. A recurring problem for me has been the use of document preparers who, when trouble arises, will hide behind the fact that they are "only" document preparers. They will claim that they did not discuss the situation with Mom or Dad and simply prepared the documents they asked for with no questions asked. I doubt this is what happens but it is hard to prove otherwise. Any why would a wealthy person retain a flimsy, low-budget operation to do something so important as make a will or trust? Whose idea was it to terminate the existing relationship?

Recorded documents

If there are concerns about Mom and Dad's situation, a great place to start is doing an on-line search with the county recorder. Very few lay persons are aware of how easy it now is to review recorded documents. Are there deeds that have been cut? Has a POA been recorded? Is there a judgment or tax lien against Mom, Dad or the exploiter? I have had several cases where this was the tip-off that something untoward was up.

Why is it difficult to discover?

You also must scrutinize the persons who are helping Mom and Dad. Do they have a spotty work history? Are they going through a troubling time or event, such as a divorce, a bankruptcy or an arrest? Do they have a history of substance abuse? Or are they just anti-social with little regard for the rights of others?

But the fact remains that it is often difficult to find out about these matters. The exploiter makes it difficult and Mom and Dad, even if they suspect something is amiss, are often reluctant or embarrassed to talk about it. Or they may have themselves convinced that nothing has happened or that the exploiter will correct the situation.

When suspicions are raised, it has always been my practice to address the matter head-on. Explain to the parents that the children are concerned and maybe even tormented by what they think is going on. If there is nothing to worry about, why not let them know? If there is a problem, then it is only a matter of time before the other children find out. This usually happens within days of the funeral, when emotions are already sky-high and what could otherwise be a manageable situation now explodes into all-out family warfare — is this what Mom and Dad wanted?

A very problematic ethical dilemma for attorneys occurs when Mom and Dad, both with capacity, are aware of the situation but do not want to make an issue of the matter. Typically, they do not believe that the amounts are large enough to risk a confrontation or they are afraid of the consequences if the exploitation comes to light. The children will be in an uproar, which is not what Mom and Dad want in their last days. Or they are afraid that the child could end up in jail or have a costly court battle on their hands. Or they are afraid that, with the caregiver child gone, that they will end up in the dreaded nursing home. Or they will correct the problem by leaving the exploiter out of the will.

The list goes on, but the problem is that there may be valid reasons why Mom and Dad want to look the other way. But the attorney must be aware that there will eventually be hell to pay and the attorney will likely be caught in the crossfire if nothing is done.

When relatives are the caregiver

The other difficulty is ascertaining if any financial exploitation has in fact occurred. Simply because the children do not agree with what Mom or Dad is doing does not equate with financial exploitation. There may be a good reason why one child is being favored, particularly when that child is the primary caregiver. The non-caregiver children almost never fully appreciate the time, effort and anguish that caregiving entails. I always warn the caregiver child — do not expect profuse gratitude from your siblings for the care provided to Mom or Dad. This may be Mom and Dad's way of repaying the caregiver child but the other children seldom see it that way. This is where thorough discussion and documentation is absolutely essential. And the value of the attorney services skyrockets when he or she becomes the corporate memory for Mom and Dad. The peace of mind afforded by making sure that Mom and Dad's testamentary desires are enforced can be priceless.

If the attorney suspects trouble, address it in the fee agreement that the estate will pay your fees if called as a witness at a deposition or trial and to cover copying costs and other costs of production.

Financial Exploitation — Legal Issues

ARS 46-456 — Financial exploitation of a vulnerable adult.

The starting point in analyzing a potential financial exploitation claim is to review the statutory form of action, ARS 46-456. This is a rather vague statute that, until recently, had no reported case to assist in interpreting the statute. This ambiguity can cut both ways. One is that it allows for some creativity since there is no limiting case law or other interpretation of the statute. But since there is no firm guidance, this can be both an incentive as well as a stumbling block to reaching a settlement. On the other hand, one should be reluctant to push the envelope given the uncertainties of statutory interpretation. This is particularly a problem for a defendant because of the draconian penalties if a violation of the statute is found.

In interpreting ARS 46-456 and its companion statute dealing with physical abuse and neglect, ARS 46-455, the courts have emphasized the broad, sweeping nature of the statute. Estate of Winn v. Plaza Healthcare, 496 Ariz Adv Rep 46 (2007); Estate of McGill v. Albrecht, 203 Ariz 525 (2002); Denton v. American Family Care, 190 Ariz 152, 155 (1997); Davis v. Zlatos, 211 Ariz 519 (CA1, 2005).

What is the procedure to initiate?

Note that since this is a Title 46 civil action, jurisdiction is not limited to the probate courts. I have prosecuted cases as a non-probate civil matter to increase my chances of a jury trial.

Subparagraph (c) states that it is brought "in a civil action". I was involved in a recent case, Estate of James S. Blackford, 1CA-CV06-0172, in which the Court of Appeals held in a memorandum decision that an allegation of ARS 46-456 must be initiated in "a separate civil action". Presumably, this complaint could then be consolidated with any probate action in accordance with Rule 42(a) of Civil Procedure. . Marvin Johnson PC v. Myers, 184 Ariz 98 (1995)

Who is protected?

ARS 46-456(a) protects "an incapacitated or vulnerable adult". The definitional section is ARS 46-451. Incapacity has an almost identical definition as that used in the probate code, ARS 14-5101(1). The two differences are that a) "advanced age" can be a reason for the incapacity and b) it is the inability to make informed decisions rather than responsible decisions. One wonders if this is a significant difference or why it exists.

"Vulnerable" is defined as someone who is "unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment". ARS 45-451(10). The conventional wisdom among probate litigation practitioners is that this is equivalent to the standard for a conservatorship, someone who is "unable to manage the person's estate and affairs effectively" who "has property that will be wasted or dissipated unless proper management is provided". ARS 14-5401(2). If this is so, then note that a conservatorship does not require a finding of incapacity. Arizona Probate Code Practice Manual, Sec. 8.1

The recent case of Davis v. Zlatos, 211 Ariz 519, 123 P3d 1156 (CA1, 2005) is the first reported case that extensively discusses ARS 46-456, financial exploitation of a vulnerable adult. Caregiver and his daughter provided 12 hour care, seven days a week for several years for wife. Husband was in nursing home. Within a five month period, wife issues a number of checks with indication that they are loans in the collective amount of $23,400. Wife then has their home deeded to caregiver, with husband's consent and with title company involvement, in that same period.

Court of Appeals reverses trial court's finding that no financial exploitation occurred. Court extensively discusses ARS 45-456, making three findings. First, court finds that wife was physically impaired, using the common usage of that term since there is no statutory definition, and therefore vulnerable. Wife was 86, "frail and unable to walk", needed assistance with all ADLs and son-in-law handled all financial matters. She was "totally dependent on (the caregiver) for her daily needs" and was living alone without her husband for the first time in nearly 70 years..

Next, court ruled that was unable to protect herself from exploitation. Caregiver had emphasized that wife had not complained about the transactions. Court states that "failure to complain is not persuasive evidence that a person is not vulnerable".

Finally, the court ruled that the caregiver failed to uphold his duties, using the statutory reference to the duties of a trustee. Court finds that the self-dealing constituted a breach of his fiduciary duties.

Court finds no reason to remand, finding as a matter of law that financial exploitation had occurred.

In a memorandum decision reaching a similar result, the Court of Appeals held that an elderly person may be vulnerable even if the alleged exploited person was "sharp", "alert", "bright", "aware of what was going on around her" and "of sound mind". The Court agreed with the trial judge (Judge Mundell) that the person's "physical condition was sufficient to support a conclusion that Lillian was a vulnerable adult". The trial court found that the person was virtually blind, with hearing aids in both ears, could not walk and could not use a telephone. Miller v. Lee, 1CA-CV02-0043 (Feb 27, 2003), paragraph 33.

Who is a defendant?

Anyone who is in a "position of trust and confidence" is a covered person, a potential defendant. ARS 46-456(a) & (b). This is defined as a) someone who has assumed a duty to provide care, b) a joint tenant or tenant in common and c) someone who is in a fiduciary relationship with the person. ARS 46-456(g)(3). It will also include anyone acting as a trustee. ARS 46-456(a) & 14-7301 et seq. The first two classifications and the duties of a trustee are straightforward. The meaning of a fiduciary relationship is discussed in further detail later in these materials.

An agent acting under a power of attorney comes within the reach of ARS 46-456. The power of attorney statute, ARS 1405506(a), states that if the agent fails to act in the "principal's best interest" or uses the principal's money for the agent's benefit, then the agent is "subject to ….. civil penalties pursuant to ARS 46-456". Note that "best interest" is defined as "the agent acts solely for the principal's benefit". ARS 14-5506(f). It is also triggered "if the agent acted with intimidation or deception as defined by ARS 46-456 in procuring the power of attorney". ARS 14-5506(c).

What is exploitation?

Exploitation is defined as "the illegal or improper use of an incapacitated or vulnerable adult or his resources for another's profit or advantage". ARS 46-451(a)(5). This definition, when combined with the requirement of ARS 46-456(a) that a person in a position of trust and confidence has duties equivalent to a trustee, means that we are really talking about breach of fiduciary duties.

There is also ARS 46-456(b) that makes a violation a crime if the person in a position of trust and confidence "by intimidation or deception knowingly takes control, title, use or management" of assets. ARS 46-456(g)(1) sets a rather easy standard for proving "deception" — creating or failing to correct a false impression, making a promise that the promisor does not intends to perform, or misrepresenting or concealing a material fact relating to a contract or agreement.

"Intimidation" includes threatening to deprive a person of "food, nutrition, shelter or necessary medication or medical treatment".

These are the elements to prove a crime. Yet, proof of this should be, in most cases, sufficient to constitute a breach of a fiduciary duty.

Many practitioners have noted that there is no minimum dollar amount that must be met before the statute is triggered, so that even a small or nominal breach of a fiduciary duty must constitute an actionable claim. There is also no scienter requirement — negligence is enough. Clients acting in a fiduciary capacity need to be warned of this, especially if there are other family members spoiling for a fight.

What happens if there is exploitation?

This is where it can get ugly. Really ugly, since the penalties of a violation of the statute are so severe.

First, anyone who has violated the statute, whether intentionally or not, "forfeits all benefits with respect to the estate of the deceased, incapacitated or vulnerable adult, including an intestate share, an elective share, an omitted spouse's share, an omitted child's share, a homestead allowance, an exempt property allowance and a family allowance". ARS 46-456(d).

A recurring question that has been raised at the Superior Court level is what constitutes the "estate" of a deceased? Is it the probate estate? Does it include a trust? What of jointly titled property or payable on death designations? What of 401k plans and other ERISA assets? In other words, is the listing in paragraph (d) meant to be exhaustive?

There is no reported case on this but this issue has been addressed in a memorandum decision, Estate of May L. Shirley, 1CA-CV 01-0173 (Apr 24, 2003). There, the Court of Appeals ruled that the credit shelter trust created by the deceased husband for the benefit of the exploited spouse was not part of the estate for purposes of forfeiting the exploiter child's interest under ARS 46-456(d). The Superior Court judges who have addressed it have not been consistent, although it is my understanding that most judges have limited the application of ARS 46-456 to the probate estate.

It would appear that this statute would not apply to 401k plans and other ERISA assets since the federal ERISA statutes regarding beneficiary designations would pre-empt any state law to the contrary. Egelhoff v. Egelhoff, 121 SCt 1322 (2001).

The statute also provides for treble damages, ARS 46-456(c), as well as punitive damages and reasonable attorney fees, ARS 46-456(e) & -455(h), and the dissolution or divestiture of any enterprise found liable.

What is the standard of proof?

Proof is by a preponderance of the evidence. ARS 46-456(e) & -455(l).

What is the statute of limitations?

The statute of limitation is currently two years from the date of actual discovery of the cause of action. ARS 46-456(e) & -455(k). But note that this is only for actions accruing after September 18, 2003. The prior statute of limitations is seven years from the date of actual discovery.

A cause of action under this statute survives death, to include any action for pain and suffering. ARS 46-456(e) & -455(p), Denton v. American Family Care, 190 Ariz 152 (1997).

Common law financial exploitation — breach of fiduciary duties

A fiduciary cannot unfairly taken advantage of a person who has entered into a confidential or fiduciary relationship. For a confidential relationship to exist, "there must be something approximating business agency, professional relationship or family tie impelling or inducing the trusting party to relax the care and vigilance he would ordinarily exercise". In Re McDonnell's Estate, 65 Ariz 248, 253 (1947).

It has also been defined as:

"(a) relationship which arises by reason of kinship between the parties, or professional, business or social relations that would reasonably lead an ordinarily prudent person in the management of his business affairs to repose that degree of confidence in another which largely results in the substitution of that other's will for his in the material matters involved in the transaction; or where the parties occupy relations, whether legal, natural, or conventional in their origin, in which confidence is naturally inspired or, in fact, reasonably exists."

In Re Guardianship of Chandos, 18 Ariz App 583, 585 (1972)

It is a relationship with "great intimacy, disclosure of secrets or intrusting of power". "Mere trust in another's competence or integrity does not suffice, peculiar reliance in the trustworthiness of another is required". Taeger v. Catholic Family and Community Services, 196 Ariz 285 (CA1, 1999).

A commercial contractual relationship, even where the collection of money is concerned, will not by itself create a fiduciary relationship unless the contract so states. Urias v. PCS Health Systems, Inc., 458 Ariz Adv Rep 3, (CA1, 2005).

Such a relationship "is particularly likely to exist where there is a family relationship", Restatement of Trusts, Second, Sec. 2, comment b. Arizona courts have found that "the relationship between husband and wife is confidential in the highest degree". MacRae v. MacRae, 37 Ariz 307, 314 (1930). In Re Marriage of Gerow, 192 Ariz 9, 18 (CA1, 1998, memorandum decision); State Farm Mutual Automobile Insurance Co. v. Long, 16 Ariz App 222, 225 (CA1, 1972); Blazak v. Superior Court, 177 Ariz 535, 539 (CA1, 1994) and Nanini v. Nanini, 166 Ariz 287 (CA2, 1990).

What constitutes a breach of the fiduciary relationship?

When a person in a fiduciary relationship has received any benefit, practitioners need to keep in mind the following quote from the controversial case of Estate of Shumway, 198 Ariz 323 (2000):

"Where a confidential relationship is shown, the presumption of invalidity can be overcome only by clear and convincing evidence that the transaction was fair and voluntary. This is a difficult standard of proof."

198 Ariz at 328:

What this means is that a plaintiff in a financial exploitation action need only prove two elements: the existence of a fiduciary relationship and self-dealing by the fiduciary. Chandos, supra.

For agents acting pursuant to a power of attorney, this has been taken a step further with requirement of the agent acting solely for the principal's benefit that has been codified in ARS 14-5506(a). A power of attorney that authorized one to act on behalf of another creates an agency relationship. An agent is a fiduciary of the principal, Restatement of Agency, Second, Sec. 13, who "is subject to a duty to his principal to act solely for the benefit of the principal", Restatement of Agency, Second, Sec. 387 (emphasis added).

Likewise, under agency concepts, one acting on behalf of another "is bound to exercise the utmost good faith" with the burden of proof resting on the agent to show "an absence of all undue influence, advantage or imposition". Starkweather v. Conner, 44 Ariz 369, 376 (1934). Even "(i)f the principal consents to a self-dealing transaction, the agent nevertheless must conform to the standard that the transaction be 'fair and reasonable' to the principal." Comment (e) to Sec. 1.01, Restatement of the Law of Agency Third, Tentative Draft No. 2 (March 14, 2001).

What are the consequences of a breach of fiduciary duties?

While Arizona courts have not always made a distinction between fiduciary and confidential relationships, it is clear that a breach of duties created by either relationship will constitute constructive fraud. In Re Purton, 7 Ariz App 526, 533 (1968); Raestle v. Whitson, 119 Ariz 524 (1978); Matter of Swartz, 129 Ariz 288, 294 (1981). Constructive fraud has two elements: a fiduciary relationship and the lack of full and truthful disclosure of all materials facts. Rhoads v. Harvey Publications, Inc., 145 Ariz 142, 148-9 (CA2, 1985). Neither intent to deceive nor dishonesty of purpose is a necessary element of constructive fraud. Lasley v. Helms, 179 Ariz 589, 592 (CA1, 1994).

Once a confidential or fiduciary relationship is established, a presumption of constructive fraud is created which places the burden upon the alleged perpetrator to prove, by clear and convincing evidence, that she acted in the principal's best interest. Chandos, supra, 18 Ariz App at 585, and that the transfer was made freely and voluntarily by the alleged exploited person and with that person's full knowledge of the facts, Eagerton v. Fleming, 145 Ariz 289, 292 (CA2, 1985). The duty to disclose is not obviated by a showing that the outcome of a transaction was fair to the alleged exploited person. Full disclosure of all pertinent information, including the presence of any conflicts of interest, is independently required. Estate of Weiner, 120 Ariz 349, 352 (1978).

Failure to provide the clear and convincing evidence renders the transactions voidable. ARS 14-5422; Chandros, supra.

This failure also is grounds for the imposition of a constructive trust, which is a remedial device used to prevent unjust enrichment or when it is inequitable to allow property to be retained by the legal title holder. Burch & Cracchiolo PA v. Pugliani, 144 Ariz 281, 285 (1985). Because of the variety of circumstances in which a constructive trust has been imposed, the doctrine has remained flexible.

As Justice Cardozo explained:

"A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee ….A court in equity in decreeing a constructive trust is bound by no unyielding formula. The equity of the transaction must shape the measure of relief."

Raestle, supra, 119 Ariz at 526, quoting Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 122 N.E. 378, 380-381 (1919).

"In most cases where a constructive trust has been established, it appears there has been shown in addition to the family relationship such factors as age and infirmity on8 one hand, actual dominance on the part of one of the parties, an established course of management of the grantor's affairs by the grantee, or other similar facts making it inequitable to allow the grantee to prevail."

Stoltz v. Maloney, 129 Ariz 264, 267 (CA2, 1981).

The constructive trustee is required to account for all monies provided to her together with all investment proceeds from that money. LM White Contracting Co. v. Tucson Rock and Sand Co., 11 Ariz App 540, 545 (CA2, 1970), ARS 14-7235(b).

Financial Exploitation — Other Legal Issues

Exploitation with no fiduciary relationship

Trover and conversion

Conversion involves an act of dominion wrongfully asserted over another's personal property in denial of or inconsistent with that person's rights in the property. Scott v. Allstate Ins. Co., 27 Ariz. App. 236, 240, 553 P.2d 1221, 1225 (App. 1976). Therefore, "[n]either good nor bad faith, neither care nor negligence, neither knowledge nor ignorance, are the gist of the action." Mezey v. Fioramonti, 204 Ariz 599 (CA1, 2003). It is the exercise of intentional dominion or control over the property in such a way that it interferes with true owner's rights to the extent that he should be required to pay the full value of the property. Miller v. Hehlen, 209 Ariz 462, 472 (CA2, 2005). It is conduct intended to affect property of another. The intent required is "`an intent to exercise a dominion or control over the goods which is in fact inconsistent with the plaintiff's rights.'" Sterling Boat Co. v. Ariz. Marine, Inc., 134 Ariz. 55, 58, 653 P.2d 703, 706 (App.1982), quoting William Prosser, Handbook on the Law of Torts§ 15, at 83 (4th ed. 1971).

The imposition of a constructive trust is authorized to recoup the converted property. Mezey, supra at 608. Keep in mind that the property must be separately identifiable or segregated for a cognizable conversion claim. The general allegation of a debt is not sufficient. Case Corp v. Gehrke, 208 Ariz 140 (CA1, 2004).

Unjust enrichment

In Arizona, five elements must be proved to make a case of unjust enrichment: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) absence of justification for the enrichment and the impoverishment and (5) an absence of a remedy provided by law. City of Sierra Vista v. Cochise Enter., Inc., 144 Ariz. 375, 381, 697 P.2d 1125, 1131 (App. 1984); Stapley v. American Bathtub Liners, Inc., 162 Ariz. 564, 568, 785 P.2d 84, 88 (App.1989)

Deceptive trade practice.

Arizona's consumer fraud statute, A.R.S. §14-1522. That statute provides:

The act, use or employment by any person of any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice.

§ 44-1522(a))

To succeed on a claim of consumer fraud, a plaintiff must show a false promise or misrepresentation made in connection with the sale or advertisement of merchandise and consequent and proximate injury resulting from the Promise. Correa v. Pecos Valley Dev. Corp., 126 Ariz. 601, 605, 617 P.2d 767, 771 (App. 1980). An injury occurs when a consumer relies, even unreasonably, on false or misrepresented information.

Courts have held that this statute does create a private cause of action. Holeman v. Neils, 803 F Supp 237 (D Ariz, 1992).

Lack of capacity, lack of knowledge and undue influence

Many times, the financial exploitation is not discovered until after the exploited person has died. The financial exploitation case then takes on many facets of a will contest. Issues such as incapacity, lack of knowledge and undue influence will be raised. Conceptually, the issues are largely the same regarding transfers done while the decedent was alive (ie, deeds, contracts, etc) or in a post-mortem setting (wills, trusts, POD designations, etc.). The only difference is that a will is given certain protections through the use of presumptions in favor of the validity of a properly executed will.

Keep in mind that these issues will normally only be raised where no fiduciary relationship exists.

Capacity to Contract

Capacity to contract is presumed. Capacity is defined as "whether, under all the circumstances, the person's mental abilities have been so affected as to render him incapable of understanding the nature and consequences of his act, that is, unable to understand the character of the transaction in question". Hendricks v. Simper, 24 Ariz App 415, 418 (1975). The party challenging a contract on incapacity grounds must prove incapacity by clear and convincing evidence.

The same test holds for the conveyance of real estate, with the focus on capacity at the time of delivery. Stewart v. Woodruff, 19 Ariz App 190 (1973); Pass v. Stephens, 22 Ariz 461 (1921).

A similar if not identical test exists for executing a power of attorney, which requires that "the person is capable of understanding in a reasonable manner, the nature and effect of his act". Golleher v. Horton, 148 Ariz 537, 540 (CA1, 1985). The test is not whether the principal understood each potential transaction that was authorized under the POA.

The capacity to create, amend, revoke or fund a trust is governed by the terms of the trust. In Re Estate of Pilafas, 172 Ariz 207, 211 (CA1, 1992).

Statute of limitations

When a fiduciary relationship is found to exist, it is not always clear when the statute of limitations begins to run and whether it has been tolled:

"With respect to those in a professional or fiduciary relationship with the tortfeasor, an adverse or untoward result, or a failure to achieve an expected result, is not, as a matter of law, always sufficient notice. To trigger the statute of limitations, something more is required than the mere knowledge that one has suffered an adverse result while under the care of a professional fiduciary"

Walk v. Ring, 202 Ariz 310, 317 (2002)

If, as will normally be the case in a financial exploitation situation, the bad act was concealed or otherwise not disclosed by a fiduciary, then the concept of fraudulent concealment exists and will also toll the statute. Morrison v. Acton, 68 Ariz 27 (1948). The exploited person "is relieved of the duty of diligent investigation required by the discovery rule and the statute of limitations is tolled until such concealment is discovered, or reasonably should have been discovered". Walk, supra, 202 Ariz at 319

Dead Man's Statute

Many times, the alleged exploiter will argue that promises were made by the exploitee or that some other agreement or understanding was reached. In a post-mortem setting, practitioners must be familiar with the workings of the Dead Man's Statute to prevent the mischief that such self-serving evidence can create. The Dead Man's Statute, ARS 12-2251, states, in part, that in a probate action "neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward unless called to testify thereto by the opposite party". It applies to interested parties as well, such as heirs and devisees. Condos v. Felder, 92 Ariz 366, 372 (1962); Cachenos v. Baumann, 25 Ariz App 502, 505-506 (CA1, 1976).

The Statute is designed to apply to "persons who will gain from inaccurate distortions of a transaction with (a) decedent….where death has rendered decedent incapable to giving the lie to the inaccuracies". Carillo v. Taylor, 81 Ariz 14, 25 (1956). See also Fridena v. Evans, 127 Ariz 516, 521 (1980) In applying the Statute, courts look for corroboration or some other indicia of reliability that "strengthens or confirms that either the statement was made or that the statement was true". Troutman v. Valley National Bank of Arizona, 170 Ariz 513, 517 (CA1, 1992).

Most practitioners overlook the fact that, even if the admission of a statement is not precluded by the Dead Man's Statute, the statement is still subject to a hearsay objection. Rules 803 & 804 of Evidence.

Parol evidence rule

A closely related issue to the Dead Man's Statute is the parol evidence rule which governs the admissibility of testimony or other evidence to supplement the party's understanding of the terms of a written agreement. In a financial exploitation setting, one party or another will often try to explain away or contradict a written document that evidences an agreement or transaction. Arizona has a very liberal and permissive parol evidence rule and the leading case is Taylor v. State Farm Mutual Automobile Insurance Co., 175 Ariz 148 (1993). An instructive and recent case is Long v. City of Glendale, 208 Ariz 319 (CA1, 2004), where the Court held that extrinsic evidence could be used in interpreting a deed. The Court then went on to apply the rule, stating that as long as there is ambiguity in the written language in the deed that is "reasonably susceptible" to the interpretation asserted by the proponent of the extrinsic evidence, then the extrinsic evidence must be admitted. 208 Ariz at 328.

However, the parol evidence rule cannot be used to prevent the introduction of fraudulent actions that contradict the terms of the written agreement, so that an exploiter cannot hide behind a document whose creation was fraudulently induced. Lusk Corp v. Burgess, 85 Ariz 90 (1958). See also Pinnacle Peak Developers v. TRW Investment Corp, 129 Ariz 385 (CA1, 1980).

Standing of beneficiaries to contest.

A very overlooked concept is that beneficiaries of a trust or estate may not be bound by any alleged agreements made between the grantor/testator and a third party. For instance, beneficiaries of a probate estate were not bound by a wrongful death settlement reached by the personal representative. Wilmot v. Wilmot, 203 Ariz 565 (2002).

In a financial exploitation setting, this means that beneficiaries may be able to void any alleged deal between exploiter and exploitee, regardless of the apparent fairness of it.

The way to avoid this problem and enforce the terms of the transaction is to obtain court approval. Such approval is binding as to all if proper notice is given and no fraud is alleged in obtaining the approval. Estate of Thurston, 199 Ariz 215 (CA1, 2000)

Remedies for Financial Explotation

Once you are reasonably sure that financial exploitation has occurred, the objective becomes three-fold — to find out exactly what has happened, to stop further exploitation and to recoup any misappropriated funds. This will almost always require court action, which can take a variety forms. I will typically file an emergency conservatorship proceeding but there are other avenues available.

Injunctive relief

Many attorneys will file for a temporary restraining order or preliminary injunction as set forth in Rules 52 and 65 of Civil Procedure and ARS 12-1801. I have shied away from these because these procedures require the petitioner to prove his case which I may not be able to do.

To obtain a TRO, the plaintiff must prove that there will be "immediate and irreparable injury, loss or damage" unless the TRO is granted. Being swindled is never a good thing, but the harm may not be irreparable and the extent of the harm may not be known at that time. The court is required to set forth findings of fact and conclusions of law, stating the reasons for the issuance of the TRO and a description "in reasonable detail" of the alleged wrongful acts. Again, the details may be sketchy at this point. And drafting a set of proposed findings of fact and conclusions of law can be a tedious and time-consuming process.

A bond is mandatory. If done ex parte, as is often done in financial exploitation cases, the TRO cannot exceed ten days and can be lifted by opposing counsel within two days of filing the request. A TRO is only binding upon the parties to the action and those who receive actual notice (ie, service) of the TRO. Once again, the plaintiff may not know who else is involved in the exploitation or what financial institutions may have or have had the funds, so they will not be bound by the TRO.

Most of this also applies to preliminary injunction but there are two additional hurdles. First, it may take up to sixty days before a hearing can be held. Often, you cannot wait that long. Second, a plaintiff must demonstrate a "strong likelihood of success on the merits" which again brings us back to the difficulty of proof — the exploiter, not the plaintiff, is the one with all the requisite information at this point.


With all of these stumbling blocks in mind, it is much better to request relief from the probate court that can invoke its equitable powers. ARS 14-1103. A probate court has specific statutory authorization "to make orders, judgments and decrees and take all other action necessary and proper to administer justice". ARS 14-1302. See also ARS 14-5402(2). I like the flexibility afforded a conservatorship since we often do not know exactly what may have happened.

At this stage, I frequently counsel clients to seek a conservatorship to simply ascertain what damage has been done. Prior to initiating a conservatorship proceeding, it is often difficult to obtain information on behalf of the exploited person. Banks and financial institutions are as much a cause of the problem as they are a solution. Unless a power of attorney exists that satisfies the vicissitudes of bank personnel, no information will be provided to the child (or attorney) of an exploited person. Once a conservator is appointed, this obstacle is eliminated. It has been my experience that banks become extremely cooperative with conservators. I suspect this is often an attempt to get into the good graces of the conservator and avoid being named as a defendant in an exploitation action since a bank can be liable if it knew or should have known that the exploitation was occurring.

A probate proceeding is also preferable because the attorney is in a familiar environment with judges and commissioners who have experience in financial exploitation cases who are likely to be sympathetic and very inclined to grant the relief sought.

It may sound cynical but this is due in large measure to what I call the "front page of the Sunday edition of the Arizona Republic" test. It seems inevitable that, every several years, a quasi-scandal will erupt in the probate court where a fiduciary is alleged to have stolen hundreds of thousands of dollars from unsuspecting wards. It makes a great news story and the story line will inevitably raise the question of where was the probate court and how could this rank injustice have happened under court supervision? No judge (or commissioner who wants to become a judge) wants to be saddled with this potentially career-ending embarrassment.

As a result, do not hesitate to voice all of your concerns even if you do not have concrete proof of your allegations. Make sure to do this in the pleadings and not simply in an oral avowal in open court since most probate matters do not have a court reporter and the new recording system may not as infallible as advertised. A record needs to be made that clearly indicates the nature of the concerns. It is always better to do this in writing since you can never be sure how the hearing will proceed and I have appeared before judges, usually those with extensive trial experience, who may make it difficult for you to make an adequate record during the hearing. In other words, you must make sure that a court cannot later hide behind the lack of a record. You are much more likely to obtain the relief sought if it is apparent to the judge that an extensive record is being made by you. Cynical but true.

Another benefit of seeking a conservatorship is that counsel will be well acquainted with the procedural aspects set forth in ARS 14-5401 et seq. Seeking the appointment of a conservator is not, from a procedural standpoint, much different from the usual conservatorship proceedings. The pleadings are not significantly different other than explaining the nature of the exploitation. See the attached conservatorship petition.

The main difference that will be encountered is that the petition will be on an emergency basis. Conservatorship pleadings come in three varieties — emergency, temporary and permanent. The conservatorship statutes have almost no mention of an emergency appointment and do not define the term "emergency". ARS 14-5401.01(a).

In Maricopa County, the probate courts seem to require a showing of an immediate need that was not caused by the person's own mistake (ie, do not seek an emergency appointment the day before a real estate closing is to occur). In Maricopa County, a hearing for an emergency appointment will usually be held within a couple days of filing. The hearing on a temporary appointment will usually be held in about two weeks after filing. The hearing on a permanent appointment will usually be held about six weeks after filing.

As with any probate proceeding, counsel must be well acquainted with notice requirement and other procedural traps. See my attached materials regarding common mistakes in guardianship and conservatorship proceedings.

Make sure that, in your pleadings, that the court is asked to order the alleged exploiter to produce whatever records they may have relating to the exploitation. Many times, this is the only way to retrieve them and opposing counsel, in an attempt to look cooperative, will state they will gladly produce the documents.


One of the biggest benefits of having a pending court proceeding is the availability of subpoena power. Many times, this is where a financial exploitation case is won or lost. It is all about documentation — if you can get a copy of the $25,000.00 check that the agent/son wrote to himself on mom's account, the case is pretty much over given the burden shifting that the law of fiduciaries affords. Once a conservator has been appointed or a TRO has been granted, the use of subpoenas can often bring the case to a relatively quick end.

I do a two-step process. First, I issue a subpoena for the monthly statements for the time in question, which will be at least a year. Be sure to provide as much information as you can within the subpoena —account numbers, SSNs, dates of birth, addresses during the time in question. Give the bank at least 45 days to respond. Copy all parties on the subpoena. I always include a cover letter to the parties asking them to provide me with any relevant information they may have, to include the information sought in the subpoena. This will also give you additional ammunition against the exploiter if they had this information and did not give it to you, given the fiduciary duties. It also puts other family members at ease knowing that tangible progress is being made in trying to sort out the situation. It will also indicate to the family members that the sorting-out process will take weeks or months and not days, so that no unreasonable expectations will be created.

I will also submit similar subpoenas to credit card companies and to any other institution or company that may have had questionable transactions with the exploitee.

Also note that, in some outlying counties, a praecipe is still required to issue subpoenas.

Once I get a response to the subpoena, I examine the statements for any unusual activity, mainly large withdrawals. I meet with the client to get their input since the monthly statements do not give much detailed information other than the amounts involved. One exception is any electronic payments that were made. I again copy all family members so that they can see for themselves the nature of the problem. Many times, a family member does not want to believe that their brother or sister took advantage of their parent. When they see it for themselves, especially the amounts involved, the skepticism quickly disappears. Do not overlook the importance of the family dynamics in these cases.

Once we determine which transactions appear questionable, my second step is to issue another subpoena listing each transaction and asking for copies of checks and other transmittal information for each transaction. I again provide for forty-five days to respond but, on the second request, the financial institutions usually respond much quicker than the first time. Many times this is because there is a transaction number on the monthly statement. Providing this number will speed things up considerably.

When copies of the checks arrive, it will usually be very apparent whether a case of exploitation exists or not. Some of the transactions may be legitimate and the children were not aware of them, such as medical bills.

But if the checks are made payable to the exploiter, then case takes on a whole new dimension. As the cases cited in Part 1B indicate, a fiduciary who has been self-dealing has the burden of justifying the transactions. The spotlight is now on the exploiter, right where you want it to be.

As for the court proceeding, I will file a status report with ample attached copies of the checks and other proof of exploitation for the judge to see. The case will then usually take a dramatic change because the judge will take a much more active role, often without any request from me.

Many times this will involve show cause orders, which is a shot across the bow of the exploiter. If you are representing the exploiter, this is when big decisions need to be made. If the exploiter will not comply with the court's order, anything can happen. If this is a problem, the exploiter will normally assert that he is very busy and needs more time to comply with the order. This is very dangerous since the court will likely grant him more time to do so — while in the county jail.

It is at about this time that third parties, primarily banks and title companies, need to be brought into the case. Usually, they will do so voluntarily by entering an appearance. Occasionally, they will file an interpleader action under Rule 22 of Civil Procedure that will be consolidated with probate action or they will seek permission to deposit funds with the court under Rule 67 of Civil Procedure. Or a complaint can be filed against the bank or other third party within the existing probate action alleging a constructive trust and other theories regarding the wrongful possession of the funds or other property.

If real estate is involved, a lis pendis should be filed but only as to the particular parcel in question. ARS 12-1191. See the attached lis pendis filing. But note that ARS 33-420 provides that anyone "knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is liable to the owner or beneficial title holder of the real property for the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording, whichever is greater, and reasonable attorney fees and costs of the action". The test is not whether the person filing the lis pendis actually owns or has an interest in the property in question but whether the person knew or should have known that there was no cognizable claim in the property. City of Mesa v. Smith Co., 169 Ariz 42 (CA1, 1991).

Subpoenas -- Medical Records and HIPAA

If there is an issue as to the exploitee's mental capacity necessitating access to medical records, HIPAA will rear its ugly head. The privacy rules of the Health Insurance Portability and Accountability Act of 1996, 42 USC 1320d and 45 CFR 160-164, sets forth the process for obtaining medical records through court orders. Disclosure is permitted in response to a court order but is limited to that information "expressly authorized" by the order. 45 CFR 164.512(e)(1)(i)

This means care must be used in two aspects. One is the obvious need for greater specificity in a court order. The second point is to make sure the order complies with the civil procedure rules. For instance, this will usually require that the judge sign the order. A minute entry or a pleading issued by the court clerk is not sufficient.

The process for obtaining medical records through the issuance of subpoenas has also been greatly impacted by HIPAA yet it has received surprisingly little attention in Arizona. The requirements are quite lengthy and detailed and will require considerable additional efforts by the attorney issuing the subpoena. The thrust of the HIPAA regs in this regard mandate that the health care provider who has been served with a subpoena must be given "satisfactory assurance" by the attorney issuing the subpoena that "reasonable efforts" have been made to notify the patient of the request made in the subpoena. 45 CFR 512(e)(1)(ii)(A).

The regs are very specific about what must be provided. Accompanying the subpoena must be a written statement setting forth the following:

  1. a good faith attempt was made to provide written notice to the patient or, if the patient's location is unknown, that a notice was mailed to the patients last known address.
  2. the written notice contained sufficient information about the litigation to permit the patient to raise an objection
  3. the time to raise an objection has elapsed, and
  4. no objections have been filed or that any objection has been resolved.

The regs also provide for an alternative method of proving satisfactory assurance by means of a "qualified protective order". 45 CFR 164.512(e)(1)(iv). This order can be either issued by the court or entered as a stipulation by the parties. Its terms must prohibit the parties from disclosing the medical records for any purpose other than for the litigation and, after the litigation has ended, the parties must agree to destroy all copies of the records or return them to the health care provider.

The applicable Arizona statute is ARS 12-2294.01, which has been amended twice in the past two years to attempt — in my opinion, unsuccessfully — to incorporate HIPAA requirements. Be aware of the federal authorities when issuing subpoenas. Simply following the Arizona statute is probably not enough.

There are many aspects of HIPAA that are not covered by these materials. The best source of information is the "OCR Privacy Brief, Summary of the HIPAA Privacy Rules" found on the HHS's website, www.hhs.gov/ocr/privacysummary.pdf, which has nearly 500 FAQs and many useful links. There is also an excellent HIPAA web blog, located at http://hipaablog.blogspot.com.

Order To Show Cause

This is where it gets ugly. Usually, removal and/or surcharge of the fiduciary is sought. This is easier said than done.

Cause for removal and/or surcharge of a fiduciary is quite broad, usually couched in terms like "best interests of the estate", breach of fiduciary duty or fraud/misrepresentation. See ARS 14-3611, 14-3709(b), 14-5429 14- 7301 et seq.

Procedurally, it is easy to get tripped up if the practitioner is not intimately familiar with the procedural rules. If a probate has been opened, a verified petition for order to show cause is filed. If no probate proceeding is pending, a new cause of action must be commenced which means the filing of a complaint. An OSC petition is usually a motion that means an underlying action has already been filed. Either way, the first hearing is only a return hearing — nothing more than a ten-minute status conference. Do not have a parade of witnesses scheduled since there will be no evidentiary hearing.

Don't forget to notice the surety if a bond has been posted. A surety is jointly and severally liable with the fiduciary. ARS 14-3606(a)(2) & -5412(a)(1). Notice must be served on the surety, either upon its statutory agent or the Department of Insurance. ARS 14-3606, 14-5411 & -5412, 14-7304. A surety does not defend a fiduciary in the manner that an insurance company does for an insured. The surety will always be represented by separate counsel and can raise defenses that a fiduciary did not, so inclusion of a surety at the outset is often, but not always, the best course of action. Any OSC petition should include a consideration of whether an allegation of breach of fiduciary is appropriate since a judgment for breach of fiduciary duty is not dischargeable in bankruptcy. 11 USC 523(a).

If financial exploitation is been alleged, a settlement is much more likely when the alleged exploiter is informed of the draconian penalties that can be imposed under the statute dealing with financial exploitation of a vulnerable adult, ARS 46-456. The penalties include mandatory forfeiture of an inheritance, treble damages, punitive damages, attorney fees and court costs.

Removal or Surcharge

Removal of the fiduciary may be appropriate if it would be in the best interest of the estate, ARS 14-3611 & —5415 or if waste, embezzlement or mismanagement by a fiduciary is proven, then removal. Barth v. Platt, 52 Ariz 33 (1938).

A surcharge may also be sought. ARS 14-3808(d), -5429(d) & -7306(d). It is usually captioned as a "Petition For Surcharge" and sets forth the facts alleging the wrongdoing. Standard allegations include breach of fiduciary duties, constructive fraud and a demand for an accounting. Also request that the sum be considered liquidated when the amount is determined, that pre- and post-judgment interest be awarded, that compensatory damages be awarded to include an anticipated return on investment that was not realized due to the wrongdoing and to award punitive damages.

Petition For Instructions

If you are representing a fiduciary and the fiduciary is in doubt on the proper course of action, the easiest and best procedure is to file a petition for instructions. In The Matter of CVR Irrevocable Trust v. Retter, 202 Ariz 174 (CA1, 2002). This is simply a petition setting forth the quandary that the fiduciary is in and seeks guidance or approval from the court for a particular course of action. This author has successfully used this petition many times for authorization for gifting, either for ALTCS or estate tax purposes.

Fee Applications

You have fought a wonderful and meritorious fight. Now it is time to get paid.

All probate practitioners are aware of Local Rule 5.7 of Maricopa County Superior Court that governs the fee application process. This author has noticed several misunderstandings regarding the fee approval process. First, there is no statutory requirement that a fiduciary or the attorney seek court approval. Rule 5.7 simply sets forth the procedure to be followed if court approval is sought.

Second, the fee application process needs to be placed on the court calendar. This, for some reason, seems to be shrouded in mystery — court staff has frequently mentioned that they are unsure what to do with a fee application. The simplest and best way is to schedule the matter for a non-appearance hearing. In Maricopa County, this is done through court administration.

Third, the fee application is often an educational experience for the beneficiaries, many of whom have never been in court or probate court before. The itemization should be very detailed since clients and families often do not realize the amount of work that has been done outside of their presence. For an extremely helpful book on how to write an invoice, read "How To Draft Bills Clients Rush To Pay" by J. Harris Morgan and Jay G. Foonberg, written by two of the most business savvy lawyers in America and available on the ABA website.

Fourth, if the fees have arisen from a litigated probate, practitioners need to be aware of the recent case of Matter of Estate of Gordon, 207 Ariz 401 (CA1, 2004) in which the Court of Appeals reversed the trial court by emphasizing that the standard for reviewing fiduciary and attorneys fees was of good faith, and not what was in the best interests of the estate. ARS 14-3720

Finally, a party challenging a fiduciary is generally not entitled to fees. Matter of Estate of Groves, 163 Ariz 394 (CA2, 1990). There is a long line of cases holding that attorneys fees arising from a breach of contract, ARS 12-341.01, do not apply in a probate or trust setting. See, most recently, Matter of Naarden Trust v. Keiber, 195 Ariz 526 (CA1, 1999). In a guardianship proceeding, practitioners need to advise their clients that, in a contested matter, the losing party will liable to the alleged ward for fees. ARS 14-5314.

Thomas J. Murphy 480 838-4838: www.murphylawaz.com

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The content of this report is general in nature and is meant to be used for informational purposes only. Due to possible changes in the law and interpretations of the law, in addition to the uniqueness of each individual's situation, this report should not be relied upon as an expression of legal advice. Before any action is taken by the reader, it is imperative that legal counsel or professional advisors be consulted.

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