PHOENIX

LAW REVIEW

VOLUME 6

SPRING 2013

Published by Phoenix School of Law Phoenix, Arizona 85004

NUMBER 3

Published by Phoenix Law Review, Phoenix School of Law, One North Central Avenue,14th Floor, Phoenix, Arizona 85004. Phoenix Law Review welcomes the submission of manuscripts on any legal topic and from all members of the legal community. Submissions can be made via ExpressO at http://law.bepress.com/expresso, via e-mail to [email protected], or via postal service to: Submissions Editor Phoenix Law Review Phoenix School of Law 1 North Central Avenue 14th Floor Phoenix, Arizona 85004 We regret that manuscripts cannot be returned. All submissions should conform to the rules of citation contained in the most recent edition of The Bluebook: A Uniform System of Citations, published by the Harvard Law Review Association. Phoenix Law Review is published twice each year or more by the Phoenix School of Law. Subscription rates are $50.00 per year for United States addresses and $64.00 per year for addresses in other countries. Subscriptions to single issues are $15.00 for United States addresses and $20.00 per year for addresses in other countries. Subscriptions are renewed automatically unless notice to cancel is received. Subscriptions may be discontinued only at the expiration of the current volume. Direct all communications to the Administrative Editor at the address given above. Copyright © 2013 by Phoenix Law Review on all articles, comments, and notes, unless otherwise expressly indicated. Phoenix Law Review grants permission for copies of articles, comments, and notes on which it holds a copyright to be made and used by nonprofit educational institutions, provided that the author and Phoenix Law Review are identified and proper notice is affixed to each copy. All other rights reserved. Copyright © 2013 by Phoenix Law Review.

6 PHOENIX

Cite as: L. REV. — (2013).

THE NEED

CLARIFICATION IN THE ARIZONA LANDLORD TENANT ACT AS IT APPLIES TO LIVE-IN CAREGIVERS

FOR

By Lori A. Curtis*

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . THE ARIZONA RESIDENTIAL LANDLORD AND TENANT ACT . . . . . HYPOTHETICAL SCENARIOS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TERMINATION OF EMPLOYMENT V. TERMINATION OF RENTAL AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Termination of Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Termination of Rental Agreement . . . . . . . . . . . . . . . . . . . . . . . . 1. Duration and Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Failure to Pay Rent or Other Non-Compliance . . . . . . . . 3. A Tenant’s Material Breach of the Lease . . . . . . . . . . . . . 4. Tenants’ Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Live-in Caregiver as Tenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. REMOVING THE CAREGIVER FROM THE PREMISES . . . . . . . . . . . . . . A. Public Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Vulnerable Adults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Arizona’s Elder Abuse Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. PROPOSED CHANGES TO CURRENT ARIZONA LAW . . . . . . . . . . . . . I. II. III. IV.

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“Every person—every man, woman, and child—deserves to be treated with respect and with caring. Every person—no matter how young or how old— deserves to be safe from harm by those who live with them, care for them, or come in day-to-day contact with them.”1 * Lori A. Curtis is a Partner at Davis Miles McGuire Gardner. She received her J.D. in 2002 at the J. Reuben Clark Law School at Brigham Young University. She practices in the areas of estate planning, asset protection, real estate, business, and employment law. She would like to thank all the editors at the Phoenix Law Review for their suggestions, comments, and editing. 1 Suzanne Perkins Newman, The Hidden Secret: The Deep Abyss of Elder Abuse, ANSWERS FOR ELDERS, http://www.answersforelders.com/legal/elder-law/suzanne-perkins-newman/hiddensecret-deep-abyss-elder-abuse (last visited Apr. 13, 2013); see also Elder Abuse & Neglect: In Search of Solutions, AM. PSYCHOLOGICAL ASS’N, http://www.apa.org/pi/aging/resources/guides/ elder-abuse.aspx (last visited Apr. 13, 2013).

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I. INTRODUCTION Mary Beth is eighty-seven years old.2 Her husband died three years ago, leaving her financially able to stay in the home they owned together for fifty years. However, Mary Beth is no longer able to care for herself alone. She needs someone to help her with basic tasks such as getting in and out of bed, getting dressed, bathing, preparing food, and performing other necessary tasks of daily living. She needs a walker to get around the house. She is well educated and articulate, but sometimes has memory lapses; she sometimes gets confused or forgets things. Mary Beth’s son, Sam, lives in another state but talks to his mother on the phone every night. He does not want to put his mother in a care home; she is comfortable where she is. She has all her worldly possessions reminding her of Sam and his father in the home. Mary Beth does not want to leave the home, and Sam has heard horror stories about how elderly people are treated in some of “those places.” After his father died, and when he realized his mother was having difficulty getting around, Sam made arrangements for a home health care service to come into the home every day to check on his mother, bring her meals, and take her to doctor’s appointments, the grocery store, and other social outings. However, just a couple of months ago, Mary Beth fell and hit her head. She did have a life-alert monitor that she was able to activate; as a result, paramedics were alerted, and they took her to the hospital for treatment and observation. Mary Beth was bruised but no bones were broken, and she was released from the hospital. Both the hospital personnel and the home health care service informed Sam that Mary Beth needed twenty-four-hour care to prevent a similar situation from happening in the future. Mary Beth was simply to the point where she needed additional care. Sam, being the dutiful son, interviewed a number of people and finally hired a former nurse, Georgia, to provide full-time caregiving services to his mother. Georgia was to live in his mother’s house in the spare bedroom and be there for emergencies at night, but otherwise her duties were to provide care for Mary Beth during the day. Georgia convinced Sam that since she would be “living” with Mary Beth, part of her “salary” would include what Georgia would have otherwise been paying for rent elsewhere. Financially, this made sense to Sam so Georgia moved in with Mary Beth. The home health care service continued to come two to three days a week to provide Georgia with time off so she could go spend time with her friends and family. Sam had paid his mother’s bills since his dad died. However, once Georgia had moved in, he started to notice that those bills were increasing. He 2

The following narrative presents hypothetical facts that illustrate the subject of this Article.

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understood the grocery bill would be higher, as Georgia was now eating meals with his mother. However, there were additional expenses that he did not always understand. He called Georgia, and she explained that Mary Beth had been depressed lately, and that she liked to go shopping at thrift stores. She explained that Mary Beth had often bought second-hand clothes, jewelry, trinkets, and knick-knacks that were not really that expensive, but made her feel better. Georgia did not think it would be a problem. Sam did not think his mother needed more “stuff” around the house, but he was not there and wanted his mother to be happy. Georgia also explained that other small cash withdrawals were used to go to the movies or to go out for ice cream. These unexpected treats seemed to give Mary Beth pleasure and cheer her up. When Sam talked to his mother on the phone, she seemed to be depressed and reserved at times, and he thought that her memory lapses were occurring more often. Sam started to worry that his mother may be showing symptoms of early-onset dementia. However, when Mary Beth tells him about her shopping trips, her spirits seem to lift and she can remember small details about the outings. Sam thinks the shopping trips are probably good for her. Mary Beth cannot always remember the movies she has seen recently, and tells Sam that most of what comes out of Hollywood today is trashy and loud, and that she does not enjoy watching it. She can only remember one movie that she enjoyed greatly, but she does not remember the name of the movie or when she saw it. Sam gets weekly e-mail updates from both Georgia and the home health care service. Georgia goes into great detail about Mary Beth’s medical condition, while the home health care service workers just report on what they observe Mary Beth to be doing on the days they are there. One employee from the home care service, Sonia, reported that there might have been a few knickknacks missing off the shelves. Sonia is not there all the time—so she cannot be sure—but the shelves seem to be emptier than when she first started visiting Mary Beth three years ago. In addition, Sonia also expressed concern that Mary Beth’s personality seemed to be different. She noted that Mary Beth had become more withdrawn and sometimes seemed depressed. Sonia seemed to think that Mary Beth was relieved to get out of the house; Sonia interpreted this to mean that Mary Beth did not like being around Georgia. Sonia is young and Hispanic and cannot write well in English, so her e-mails are sometimes difficult for Sam to understand. Sam begins to think that there may be a personality conflict between Georgia and Sonia, and that Sonia feels threatened by Georgia because Georgia is a former nurse. One Friday night, when Sam talked with his mother on the phone, she seemed to be fearful about something. He tried to ask her what was going on, but she could not articulate what was wrong. She did tell him she was afraid of Georgia, but she could not explain why. Sam then asked if Georgia hurt her;

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Mary Beth replied that she did not know. Sam asked what happened that day, and Mary Beth could not remember. Mary Beth explained that she was confused, upset, and just wanted to go to bed early; however, she did tell Sam that Georgia had been having people come over late at night after Mary Beth had gone to bed. Overall, Mary Beth felt uneasy around Georgia but could not explain why she felt that way. Sam called Georgia and, without explaining his concerns for his mother, asked if anything unusual happened that day. Georgia told him they went shopping that day and that Mary Beth seemed fine. Sam asked if Georgia has been having visitors come over, and Georgia responded in the negative, but she mentioned that she watches television late at night and suggested Mary Beth might be hearing the voices from the television. Georgia did tell Sam that she thought Sonia had been stealing from Mary Beth because Georgia had started to notice things missing from the house. Sam slept restlessly that night and did not know what to do. To his surprise, Sam received an emergency phone call the next morning from Sonia stating that when she went to check on Mary Beth that morning, Mary Beth fired her and accused Sonia of stealing from her. Sonia told Sam that Mary Beth fired the whole health care service agency and accused them all of conspiring to steal her money. Sam immediately called his mother to verify the veracity of the story. Mary Beth told Sam that Sonia and the other caregivers had been stealing from her, were over charging for their services, and were trying to raid her bank account. Mary Beth did not know how she came to this conclusion; she simply responded that she “just knows.” Mary Beth had talked with Georgia, and Georgia was going to have one of her friends come in to care for Mary Beth on the days that Georgia is off. Sam reminds his mother that just a day or two ago, Mary Beth told him she was afraid of Georgia and that her decision to allow Georgia to remain is contrary to her previous statement. Mary Beth became confused and could not recall what she had said or when she had said it. All she knew was that Georgia had promised to take care of her, and that she was afraid of being alone. Sam suspected Georgia had told his mother that Sonia and the home health care agency were stealing from her because Georgia wanted to isolate Mary Beth from anyone who might question what Georgia had been doing in the home. Taking into account the increased bills, the extra shopping trips, and the small cash withdrawals from his mother’s bank account, Sam believes Georgia is financially exploiting his mother and convincing her that the home health care agency is the cause of her worries. Sam then called Georgia and told her things were not working out and that she was being let go. He requested that she collect her things and leave the house by the end of the day. Sam had

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previously called, and paid in advance, for Georgia to stay at a hotel down the street; he had contacted the home health care agency to make sure that someone would be there to care for Mary Beth until he could hire someone else on a fulltime basis. Georgia told Sam that he was making a big mistake, that she had done nothing wrong, and that if he decided to fire her, he would be in violation of the Arizona Landlord Tenant Act. Although Georgia was getting paid to care for Sam’s mother, part of her services were in exchange for a room to live in; therefore, she was considered a tenant and was protected by the Act. She informed Sam that he was required to give her a thirty-day notice so she could find another place to live; she said that until she received such a notice, she would not leave the house. Sam, worried about what Georgia might do to his mother, called the police. They told him that because Georgia was claiming to have a rental agreement with Sam, they could not make her leave the house without her consent. The police said they could arrest Georgia for trespassing, but if they did, Sam, his mother, and likely the police department could be sued for wrongful eviction under Arizona law. The police asked Sam if he had any proof that Georgia was a threat to his mother, because under those circumstances, they could step in and remove Georgia from the house; otherwise, removing her was “iffy” under Arizona law. Sam did not have any hard evidence that Georgia was a threat to his mother; he had only his gut telling him that something was wrong. It was Saturday morning and Sam did not know who to call or what to do. Elder abuse, mistreatment, neglect, and financial exploitation are terms not uniformly interpreted or applied. Mistreatment can be “an act of commission or of omission (. . . ‘neglect’), and [ ] it may be either intentional or unintentional.”3 The definition of elder abuse provides that, “[e]lder abuse is a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.”4 Much like the hypothetical above involving Sam and Mary Beth, elder abuse is often difficult to prove and may not be reported, or even perceived, by the victim herself.5 However, it is a problem that, if not resolved, is likely to worsen. It is an accepted fact that in general people are living longer and, as a result, the popu3 WORLD HEALTH ORG. (WHO), WORLD REPORT ON VIOLENCE AND HEALTH 126 (2002), available at http://whqlibdoc.who.int/publications/2002/9241545615_chap5_eng.pdf. 4 Id. at 126-27. This definition was developed by Action on Elder Abuse in the United Kingdom and adopted by the International Network for the Prevention of Elder Abuse. Id. at 126. 5 Abuse and mistreatment of vulnerable and incapacitated adults happens to both males and females. The use of the feminine pronoun is solely used for the purpose of this Article and should not be construed to imply that abuse is gender specific.

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lation is aging. According to the 2010 census, over forty million people in the United States are sixty-five years old or older.6 The Census Report also stated that the population aged sixty-five and older grew at a faster rate over the last ten years than did the population that was under the age of forty-five.7 Old age is not necessarily accompanied by good health. To the contrary, it is highly likely that as people age, their physical, mental, and emotional health declines. A recent report by the Center for Disease Control and Prevention (“CDC”) reports that by 2030, when all the Baby Boomers will be at least sixty-five years old, the population of adults over the age sixty-five is projected to increase to seventy-one million.8 Statistics regarding the need for health care and caregiving services for this population are staggering. According to the CDC, the percent of non-institutionalized persons age sixty-five and over, who are in fair or poor health, is 24.4%.9 The percentage of non-institutionalized individuals aged sixty-five and over who need help with personal care from other individuals is 7.3%.10 The number of visits to physicians’ offices, hospital outpatient providers, and emergency departments by individuals aged sixty-five and over in the year 2010 was 398,400,000.11 In 2004, the number

6 CARRIE A. WERNER, U.S. CENSUS BUREAU, U.S. DEP’T OF COMMERCE, C2010BR-09, THE OLDER POPULATION: 2010 3 (2011). 7 See id. 8 Admin. on Aging, A Profile of Older Americans, DEP’T OF HEALTH & HUMAN SERVS., http://www.aoa.gov/AoAroot/Aging_Statistics/Profile/2005/4.aspx (last modified July 16, 2009). The number of people in the United States age sixty-five years or older is expected to rise by 101% between the years 2000 and 2030, at a rate of 2.3% each year. Healthy Aging; Caregiving: A Public Health Priority, CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/ aging/caregiving/ (last reviewed Dec. 7, 2010). 9 CTRS. FOR DISEASE CONTROL & PREVENTION, DEP’T OF HEALTH & HUMAN SERVS., DHHS Pub. No. 2012-1232, HEALTH, UNITED STATES, 2011: WITH SPECIAL FEATURE ON SOCIOECONOMIC STATUS AND HEALTH 2 (2012) (providing data from the 35th report on the health status of the Nation and is submitted by the Secretary of the Department of Health and Human Services to the President and the Congress of the United States in compliance with Section 308 of the Public Health Service Act). 10 CTRS. FOR DISEASE CONTROL & PREVENTION, DEP’T OF HEALTH & HUMAN SERVS., EARLY RELEASE OF SELECTED ESTIMATES BASED ON DATA FROM THE 2011 NATIONAL HEALTH INTERVIEW SURVEY 86 (2012), http://www.cdc.gov/nchs/fastats/older_americans.htm. 11 Data is based on summary estimates across three tables. See NATIONAL HOSPITAL AMBULATORY MEDICAL CARE SURVEY: 2010 SUMMARY PAGES Table 3 (2011), http://www.cdc.gov/nchs/ data/ahcd/namcs_summary/2010_namcs_web_tables.pdf; NATIONAL HOSPITAL AMBULATORY MEDICAL CARE SURVEY: 2010 OUTPATIENT DEPARTMENT SUMMARY TABLES Table 2 (2011), http://www.cdc.gov/nchs/data/ahcd/nhamcs_outpatient/2010_opd_web_tables.pdf; NATIONAL HOSPITAL AMBULATORY MEDICAL CARE SURVEY: 2010 EMERGENCY DEPARTMENT SUMMARY TABLES Table 2 (2011), http://www.cdc.gov/nchs/data/ahcd/nhamcs_emergency/2010_ed_web_ tables.pdf.

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of nursing home residents age sixty-five and over was 1,300,000.12 The number of home health care patients age sixty-five and over was 1,000,000 in 2007.13 For many individuals, staying in their own home is the optimal choice. Family members are one option for providing at-home caregiving services.14 For those individuals who do not want to live in an assisted living facility and prefer to stay in their own home, but simply do not have the family support necessary for the care they need, hiring in-home health care workers or “companion” workers is the only option.15 However, the relationship between the live-in caregiver and the adult who requires the care is ill-defined in Arizona case law and statute. While the traditional view is that the relationship is one of employer/employee,16 an argument also can be made that the relationship is one of landlord/tenant. Re-characterizing the relationship has serious implications for the respective rights and obligations of the parties. In many circumstances, the individual requiring care can be defined as a “vulnerable” or “incapacitated” adult as those terms are defined by Arizona statute.17 As such, if the relationship is classified as a landlord/ tenant relationship, the vulnerable or incapacitated adult needs additional protection that is inadequately provided by Arizona law. This Article discusses the implications of such “landlord/tenant” relationships under Arizona law, as it is currently written, and proposes additional protections that should be added by legislation. Part II discusses the requirements for establishing a landlord/tenant relationship and whether the Arizona Residential Tenant and Landlord Act applies to live-in caregiver relationships. Part III discusses possible scenarios in which: (1) no landlord/tenant relationship has been established; (2) a landlord/ tenant relationship has been established; and (3) there is ambiguity as to whether or not a landlord/tenant relationship has been established. Part IV dis12 CTRS. FOR DISEASE CONTROL & PREVENTION, DEP’T OF HEALTH & HUMAN SERVS., DHHS Pub. No. 2009-1738, THE NATIONAL NURSING HOME SURVEY: 2004 OVERVIEW 17 (2009). 13 Christine Caffrey et al., Home Health Care & Discharged Hospice Care Patients: United States, 2000 and 2007, NAT’L HEALTH STATISTIC REPORTS 9 (Apr. 27, 2011), http://www.cdc.gov/ nchs/data/nhsr/nhsr038.pdf. 14 See, e.g., Alzheimer’s Association, 2010 Alzheimer’s Disease Facts and Figures, 6 ALZHEIMER’S & DEMENTIA 23 (2010) (stating that out of the almost 11,000,000 Americans who provide unpaid care for a person with Alzheimer’s disease or another type of dementia, the majority of these unpaid caregivers are primarily family members). 15 Caregivers provide assistance to someone who is, to some degree, incapacitated and in need of help. Fact Sheet: Selected Caregiver Statistics, FAMILY CAREGIVER ALLIANCE, http://www. caregiver.org/caregiver/jsp/content_node.jsp?nodeid=439) (last visited Apr. 21, 2013). 16 See, e.g., Hiring a Caregiver, UTAH COAL. FOR CAREGIVER SUPPORT, http://www.caregiv ers.utah.gov/hiring_a_caregiver.htm (last visited Apr. 21, 2013). 17 See discussion infra Part V.B-C.

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cusses termination of each of these relationships and their implications for the vulnerable adult. Part V discusses the difficulties of removing the caregiver from the premises and the potential risks for the vulnerable adult during the ejection process. Part VI proposes changes to legislation that would protect the respective rights of both the ejected caregiver and the vulnerable adult.

II. THE ARIZONA RESIDENTIAL LANDLORD AND TENANT ACT The Arizona Residential Landlord and Tenant Act (“ARLTA” or “the Act”),18 governs all residential landlord and tenant rights and obligations in Arizona. As a general rule, an adult who lives in a house or apartment with the permission of the owner is a tenant.19 As a tenant, that person can only be removed pursuant to proper notice of termination of tenancy.20 The Act specifically excludes from its intended scope “[o]ccupancy by an employee of a landlord as a manager or custodian whose right to occupancy is conditional upon employment in and about the premises.”21 However, the Act does not define what an employee of the landlord “as a manager or custodian” encompasses.22 Dictionary definitions for a “manager” include: “(1) a person who has control or direction of an institution, business, etc., or of a part, division, or phase of it; (2) a person who manages; (3) a person who controls and manipulates resources and expenditures, as of a household”;23 or (4) “one that manages: as . . . a person who conducts business or household affairs, . . . [or] a person whose work or profession is management.”24 Similarly, dictionary definitions for a “custodian” include: (1) “a person who has custody; keeper; guardian; (2) a person entrusted with guarding or maintaining a property; 18

ARIZ. REV. STAT. ANN. §§ 33-1301 to 1381 (2012). Id. § 33-1310(16). The statutory definition for “Tenant” is “a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others.” Id. A “Dwelling unit” is a “structure or the part of a structure that is used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household.” Id. § 33-1310(4). These statutory definitions, in and by themselves, do not exclude a livein caregiver who lives in the residence or on the premises in a separate or attached dwelling. 20 See id. § 33-1368(A). 21 Id. § 33-1308(5); U-Stor Bell, L.L.C. v. Maricopa Cnty., 59 P.3d 843, 846 (Ariz. Ct. App. 2002). 22 “In applying a statute . . . its words are to be given their ordinary meaning, unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.” Mid Kansas Fed. Sav. & Loan v. Dynamic Dev. Corp., 804 P.2d 1310, 1316 (Ariz. 1991). 23 Manager, DICTIONARY.COM, http://dictionary.reference.com/browse/manager?s=t (last visited Apr. 21, 2013). 24 Manager, MERRIAM-WEBSTER, http://www.merriam-webster.com/dictionary/manager (last visited Apr. 21, 2013). 19

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janitor;”25 and (3) “one that guards and protects or maintains; especially: one entrusted with guarding and keeping property or records or with custody or guardianship of prisoners or inmates.”26 While non-legal definitions may aid in defining the scope of the meaning intended by the Act, the real-life application has not been defined in an Arizona court of law. Arizona courts have not encountered a case where an employer evicted a live-in caregiver, and thus there is no judicial definition to aid practitioners in defining the scope of the Act as it applies to live-in caregivers.27 Consequently, in a case similar to the hypothetical above, law enforcement officials tasked with removing a caregiver are reluctant to impute a definitive 25 Custodian, DICTIONARY.COM, http://dictionary.reference.com/browse/custodian?s=t (last visited Apr. 21, 2013). 26 Custodian, MERRIAM-WEBSTER, http://www.merriam-webster.com/dictionary/custodian (last visited Apr. 21, 2013). 27 In the case of Myrtle Manor Apartments v. City of Phoenix, as amended, the Arizona Court of Appeals had the occasion to partially interpret whether or not a barter transaction existed if a property manager was willing to accept less monetary compensation in exchange for being able to live in an apartment on the premise “rent free.” Myrtle Manor Apartments v. City of Phx., 868 P.2d 1048 (Ariz. Ct. App. 1994). The court held that it was not a barter situation “if the landlord needs the property manager to live on the premises” and, therefore, the apartment provided to the manager could not be considered a rental unit. Id. at 1052. However, the term as interpreted in Myrtle Manor is squarely within the enumerated exceptions provided in A.R.S. § 33-1308(5), and the case specifically addressed whether or not the rental value of the apartment provided, rentfree, was subject to the City’s privilege taxes on real property rental income. Id. at 1058. It is therefore questionable to what extent the holding would be persuasive in a live-in caregiver situation in which a caregiver asserted that their services were traded in part for a place to live and that they were in fact a tenant. The key difference is that ARLTA’s purpose is to protect the rights of tenants while the holding in Myrtle Manor was for the purpose of allowing the City to collect privilege taxes on the value of the rental unit. Similarly, in the case of Genc Realty LLC v. Nezaj, the New York Supreme Court Appellate Division held that when a rent-stabilized tenant accepted employment as a building superintendent and moved into a separate superintendent’s apartment, he exchanged his status of tenant for that of an employee, such that the landlord-tenant relationship ceased to exist, and thus, his right to occupy the apartment terminated along with the termination of his employment. Genc Realty LLC v. Nezaj, 52 A.D.3d 415 (N.Y. App. Div. 2008). However, in Grant v. Detroit Ass’n of Women’s Clubs, the Supreme Court of Michigan held that “where the essential characteristics of a landlord-tenant relationship are present, an employment contract may create a tenancy.” Grant v. Detroit Ass’n of Women’s Clubs, 505 N.W.2d 254, 259 (Mich. 1993). In Grant, a caretaker allowed to occupy an apartment in return for his services established the existence of a landlord-tenant relationship: the apartment had been provided in consideration of the caretaker’s labor, possession and control of the apartment had been transferred to the caretaker who occupied it exclusive of the owner, the length of the tenancy was agreed upon, occupancy was independent of the relationship in that the caretaker did not have to live on the premises, occupancy was not treated as a marginal consequence of employment, and public policy against lockouts of tenant was furthered by finding a landlord and tenant relationship. Id. at 258.

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meaning to the terms as currently provided for in the Act.28 Certainly, the determination of whether a tenancy is created will be dependant upon the specific facts of each individual case and, under the current statutory regime, upon whether the live-in caregiver meets the definition of a tenant or falls within the ambiguity of the enumerated exceptions. As written, the legislative intent appears to only exclude managers and/or custodians of property and not of individuals. While the issue has not been addressed in any published Arizona court opinion, case law from other jurisdictions holds that unless the caregiver has a separate written rental agreement, he or she is an employee, not a tenant. For instance, the United States Court of Appeals for the Tenth Circuit ruled “that when an employee occupies a house on the premises of his employer, and that occupancy is merely incidental to his employment, the relationship of landlord and tenant does not exist; rather, the rights and liabilities of the parties are governed by the law of master and servant.”29 This principle has been applied in Ohio as well. In Lee v. Wallace, the Ohio Appellate Court applied substantially similar statutes to a case where a live-in caregiver was removed from the property after the termination of her employment.30 Similar to the caregiver in the hypothetical case presented in the introduction of this Article, Lee, the caregiver, reasoned that “although she did not have a rental agreement or pay rent, . . . a tenancy was created by virtue of the private room provided to her as part of her oral employment agreement.”31 She further claimed that “her services as a caregiver equated to ‘rent payments’ because the value of her services exceeded the compensation she received.”32 Unfortunately, the court found her reasoning unpersuasive. First, “the private room was provided as a necessary accommodation for Lee’s job. Indeed, when on duty, Lee was responsible for helping [Wallace] in the middle of the night if needed.”33 Second, “Lee had no expectation of a tenancy in [Wallace’s] home. For example, . . . she never mailed out change-of-address cards 28 The author has had personal experience in attempting to use law enforcement officers to remove a live-in caregiver after the caregiver’s employment was terminated and thus is acutely aware that police officers are reluctant to become involved in legal interpretations that are more appropriately determined by the legal and judicial branches of government. Even an informal poll of currently practicing attorneys provided multiple interpretations of the scope of the Act as it applies to live-in caregivers and the remedies a vulnerable adult employer may have under the Act. 29 Moreno v. Stahmann Farms, Inc., 693 F.2d 106, 107 (10th Cir. 1982). 30 Lee v. Wallace, 926 N.E.2d 328, 332 (Ohio Ct. App. 2010). 31 Id. 32 Id. 33 Id.

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or listed Wallace’s address as her residence on her driver’s license or other personal accounts; [Lee also] conceded that she would have had no right to remain in [Wallace’s] house if she had quit.”34 Third, Lee “did not have a right to use the premises to the ‘exclusion of others.’”35 Further, there was “no evidence of any rental agreement between the parties.”36 The Lee court recognized that rental agreements can be made orally and that rent can be paid in services rather than in cash, but the court held that neither occurred in this case.37 Since the room was a necessary accommodation for the job and there was no lease, the right to use the room was directly tied to the employment.38 The court’s holding can be reasonably interpreted as stating that if a caregiver’s employment is terminated, his or her right to live in the room is likewise terminated. Clearly there are no bright-line rules when analyzing this caregiver/tenant issue; however, using the guidelines articulated in Lee, one could formulate a compelling argument.

III. HYPOTHETICAL SCENARIOS Using the guidelines articulated in Lee v. Wallace, the following scenarios illustrate some of the deficiencies in the Act regarding the caregiver/tenant issue as it is currently written: Scenario One: The vulnerable adult, Beatrice, has numerous caregivers who take shifts coming into Beatrice’s home to care for her. None of the caregivers lives on the premises and each maintains his or her own residence. ARLTA clearly does not apply. Scenario Two: Beatrice has one main caregiver, Angela, who lives on Beatrice’s premises but also maintains her own residence. Angela has two days off per week during which a relief caregiver from an agency comes into Beatrice’s home to provide care. Angela, on her days off, is not on Beatrice’s premises, but stays at her own residence. During the rest of the week, Angela has her own bedroom at Beatrice’s house and Angela is available and on call twenty-four hours a day in the event Beatrice falls or needs her in the middle of the night. Under the guidelines established by Lee, Angela is not a tenant and ARLTA does not apply. Scenario Three: Beatrice has one main caregiver, Kathy. Kathy lives on Beatrice’s premises full time and does not have her own residence. She has two days off during which a relief caregiver comes in from an agency; how34

Id. Id. Similarly, under Arizona law, a “tenant” is person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others. ARIZ. REV. STAT. ANN. § 33-1310 (2012). 36 Lee v. Wallace, 926 N.E.2d, at 332. 37 Id. at 332-33. 38 Id. at 332. 35

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ever, Kathy remains in Beatrice’s home on her days off. On those days, Kathy can run errands, stay in her room, lay out by the pool, or just sit and watch television. There is neither a written employment agreement between Beatrice and Kathy or a written rental agreement. Kathy is still being paid her regular wage, but the fact that Kathy does not maintain her own residence makes this scenario less clear than the scenario in Lee. However, it can be argued that as long as Kathy is receiving full wages for the services she performs, the room provided to her is incidental to her employment, and it is unlikely that ARLTA would apply. Scenario Four: Beatrice has one main caregiver, Monica. Monica lives on the premises full time and does not have her own residence. Monica has two days off during which a relief caregiver comes in to care for Beatrice. Monica and Beatrice have agreed that because Monica does not have to pay rent on a separate apartment, Monica will receive a reduced amount of cash for her services. Under Lee, the facts and circumstances do not follow any clear guidelines and there is no clear indication of whether or not an Arizona court would find that ARLTA applies. Scenario Five: Beatrice needs a caregiver and Tonya needs a place to live. Beatrice hires Tonya to be her caregiver in exchange for Tonya renting out a room from Beatrice. Although there is no written agreement between the two, under these circumstances, it is likely a court would find there was a rental agreement in exchange for services: ARLTA may apply. If ARLTA applies to a live-in caregiver employment agreement, serious implications are raised in the employer-employee context, which limits the employer’s rights beyond those currently provided by Arizona employment law.

IV.

TERMINATION OF EMPLOYMENT V. TERMINATION RENTAL AGREEMENT

OF

A. Termination of Employment Absent a written employment agreement, employment in Arizona is “at will.”39 An employer or employee may sever the relationship without notice, and without liability for the specific act of terminating the employment.40 Arizona’s Employment Protection Act (“EPA”) abolished Arizona’s common law of wrongful discharge, and in its place, established a three-part codification of all such claims. Under the new regime of the EPA, employment relationships

39 40

Employment Protection Act, § 23-1501(A)(2). Id. § 23-1501.

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are presumptively severable by either party at any time, or “at will.”41 The EPA only permits employee claims if: “(a) the discharge was in violation of an employment contract, (b) the discharge violated a[n] . . . [Arizona] statute . . . , or (c) the discharge was in retaliation for the employee’s assertion of certain rights protected by state law.”42 A terminated employee may assert a breach of contract claim against an employer only if the employee can show that “both parties entered into a written contract that either (1) states that the employment relationship has a specified duration, or (2) otherwise expressly restricts the right of either party to terminate the employment relationship.”43 Under Arizona law, an employer is permitted to terminate an employee and immediately remove the former employee from the workplace to prevent retaliation.44 Therefore, absent a written employment agreement to the contrary, an employee may be fired at any time and escorted off the workplace premises.

B. Termination of Rental Agreement 1. Duration and Notice Under ARLTA, if the rental agreement does not establish a time frame, the rental agreement becomes a month-to-month rental.45 To terminate a monthto-month rental agreement, either the landlord or the tenant must give thirty days notice in writing before the next rent payment would normally fall due.46 If a tenant fails to comply with the rental agreement, “the landlord may deliver 41 Id. See also, White, M.D. v. AKDHC, LLC, 664 F.Supp.2d 1054, 1062 (D. Ariz. 2009). Prior to the adoption of the EPA, employment relationships were governed largely by Arizona common law, which presumed that employment relationships were both contractual in nature and terminable at will by either party, but also included several exceptions to the at-will doctrine. Id. at 1061. In Taylor v. Graham Cnty. Chamber of Commerce, the court stated that from the wording, context, and historical background of the EPA, it “gleaned” that the legislative intent of the statute was to “circumscribe, not broaden, wrongful termination claims based on alleged violations of public policy.” Taylor v. Graham Cnty. Chamber of Commerce, 33 P.3d 518, 525 (Ariz. Ct. App. 2001). 42 Cronin v. Sheldon, 991 P.2d 231, 235 (Ariz. 1999). There have been attempts by plaintiffs to use common law and assert that public policy favors the enforcement of implied or oral employment contracts. Courts have determined, however, that “since the inception of the AEPA, common law wrongful discharge claims based upon public policy are limited, as the legislature now favors the comprehensive statutory scheme of the AEPA.” Lombardi v. Copper Canyon Acad., LLC, No. 09-CV—8146-PCT-PGR, 2010 WL 3775408, at *8 n.9 (D. Ariz. Sept. 21, 2010). 43 White, M.D., 644 F.Supp.2d at 1062. See also, Johnson v. Hispanic Broadcasters of Tucson, Inc., 2 P.3d 687, 689 (Ariz. Ct. App. 2000) (holding that the EPA “changes our inquiry from whether the employment agreement is enforceable at common law to whether the employment agreement satisfies the statutory requirements.”). 44 See, e.g., Nelson v. Phoenix Resort Corp., 888 P.2d 1375 (Ariz. Ct. App. 1995). 45 ARIZ. REV. STAT. ANN. § 33-1314(D) (2012). 46 Id. § 33-1375(B).

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a written notice to the tenant specifying”47 what the tenant did or did not do; however, the notice must specify that the rental agreement “will terminate upon a date not less than ten days after receipt of the notice if the breach is not remedied in ten days.”48

2. Failure to Pay Rent or Other Non-Compliance There are remedies available to the landlord if a tenant fails to pay the rent due, or if there is a material breach of the lease. If a tenant falls behind in her rent payments, the landlord must notify the tenant that she has five calendar days in which to pay past due rent or the rental agreement will be terminated.49 Similarly, if a tenant fails to comply with other aspects of the rental agreement, “the landlord may deliver a written notice to the tenant specifying” what the tenant did or did not do; and again, the notice must specify that the rental agreement “will terminate upon a date not less than ten days after receipt of the notice if the breach is not remedied in ten days.”50 Service of notice does not mean the tenant is evicted. Rather, the notice is used to inform the tenant that he or she is in violation of the lease terms and that the contract breach must be fixed by a certain date or the tenant must quit the lease agreement and vacate the premises.51 If the tenant complies and either remedies the breach or moves out by the date identified on the notice, no further action is needed. The problem arises when the tenant fails to remedy the breach and refuses to vacate the premises.52 In such event, the landlord must file an eviction lawsuit and obtain a court order lawfully evicting the tenant.53 A landlord may not change the locks or shut off the utilities to try to evict the tenant: to do so is a violation of Arizona law, subjecting the landlord to penalties.54 47

Id. § 33-1368(A). Id. 49 Id. § 33-1368(B). The notice must either be hand delivered to the tenant or sent to the tenant by certified or registered mail. Id. § 33-1313(B). A landlord must also give the tenant written notification that she may be present during any move-out inspection that will be used to determine itemized deductions from any security deposit paid by the tenant; however, the landlord does not have to meet this requirement if he or she is evicting the tenant for a material and irreparable breach and he or she “has reasonable cause to fear violence or intimidation by the tenant.” Id. § 33-1321(C). 50 Id. § 33-1368(A). 51 See id. 52 Id. § 12-1171(3). 53 Id. § 33-1377. 54 Id. §§ 33-1367, 33-1374. See also State v. Main, 764 P.2d 1155, 1157 (Ariz. Ct. App. 1988) (“In Arizona the landlord cannot use self-help to eject holdover tenants. His only remedy is to bring an action for possession.”). 48

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3. A Tenant’s Material Breach of the Lease If the tenant’s rental noncompliance materially affects health and safety and the tenant fails to comply after the landlord provides notice, the landlord can enter the residence, personally remedy the problem, and apply the reasonable cost of the work to the next rent payment.55 There is simply no provision for a health and safety issue regarding the personal safety of the so-called landlord himself, and there is no remedy provided within the Act if the “cost” itself is to be offset by services provided by the tenant/caregiver.56 A tenant may terminate a rental agreement if the tenant is the victim of domestic violence,57 but no provision is made for the landlord to terminate the rental agreement if the landlord is the victim of domestic violence.58 4. Tenants’ Responsibilities Tenants’ responsibilities under the Act do not provide for, or even contemplate, a situation in which the tenant is also an employee of the landlord, such as in a caregiver situation. Rather, tenants’ responsibilities focus on their duty to maintain the dwelling unit. This includes such things as complying with applicable provisions of building codes; keeping their part of a unit clean; using appliances reasonably; and not deliberately or negligently destroying, damaging, or removing part of the premises.59 Tenants also should conduct themselves and control their guests so as not to disturb the neighbors.60 A tenant is “held responsible for the actions of [his or her] guests that violate the lease agreement or rules and regulations of the landlord if the tenant could reasonably be expected to be aware that such actions might occur and did not attempt to prevent those actions to the best of [his or her] ability.”61 Although a landlord can create rules and regulations separate from the Act that apply to the landlord’s tenants, any such rules cannot have the purpose of evading the landlord’s obligations under the Act.62 How does this act together with an employment agreement in which the “rental agreement” could be implied as part of an employment agreement? If 55

§ 33-1369. See id. 57 Id. § 33-1318(A). 58 This is, presumably, because the Act does not contemplate the landlord’s being a victim of the tenant’s domestic violence and/or that the landlord and tenant would reside within the same dwelling. See discussion of the applicability of Arizona’s domestic violence statute. See discussion infra Part V.C. 59 See § 33-321. 60 § 33-1341(7). 61 § 33-1368(G). 62 § 33-1342(A). 56

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ARLTA applied to a live-in caregiver situation, would the landlord/employer be in violation of the Act if he attempted to implement an immediate eviction procedure that was perceived to be “evading the landlord’s obligations” under ARLTA, but was in fact simply an attempt to protect an employer from being forced to live with a caregiver an additional thirty days when the caregiver’s employment has been terminated?

C. Live-in Caregiver as Tenant Under Arizona law, a live-in caregiver who qualifies as a tenant clearly has more rights available to her than if she is merely classified as an employee. While an employee may be terminated on the spot, a tenant can legally stay on the premises until the court issues its order evicting the tenant.63 If the caregiver qualifies as a “tenant” under ARLTA, the caregiver would additionally be permitted to assert any alleged counterclaims in a forcible detainer action;64 these counterclaims could possibly include claims arising under any employment agreement, expanding the caregiver’s rights and limiting the employer’s rights to an at-will employment relationship. Further, an employer does not have to give an employee a “second chance.” However, if a tenant remedies any breach of the rental agreement, the tenancy is reinstated.65 The distinction between the two classifications, and their relative implications for the employer/landlord, are critical. A well-written employment agreement—clearly establishing that the employee is living in the home pursuant to employment and clearly establishing there is no tenancy created—will help protect the vulnerable adult in the event the employment must be terminated. The employment agreement must clearly state that upon termination of employment, the caregiver must vacate the premises immediately. There are a number of reputable agencies that provide written contracts for services to the elderly; unfortunately, most caregiver situations are based on oral agreements between individuals. Under the EPA, and absent a written employment agreement, the employment is determined to be “at will.” However, not clarifying the status of the caregiver under ARLTA could both subject the employer to an unwanted “tenant” living in her home and prevent the employer from utilizing the courts to obtain an order of eviction. 63 Compare Roberson v. Wal-Mart Stores, Inc., 44 P.3d 164, 169 (Ariz. Ct. App. 2002), with discussion supra Part IV.B. 64 See, e.g., Mead, Samuel & Co., Inc. v. Dyar, 622 P.2d 512 (Ariz. Ct. App. 1980) (finding counterclaims are permitted where landlord liabilities have been established by the rental agreement). 65 See discussion supra Part IV.B.

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REMOVING

THE

CAREGIVER

FROM THE

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PREMISES

A. Public Policy Additionally complicating the equation is the public policy concern that a live-in caregiver could be rendered “homeless” at the whim of his or her employer. Public policy and many statutes give residents of all classifications some amount of notice before eviction. For example, even when a property is sold through a trustee sale, the holdover resident is afforded notice prior to eviction.66 This is generally due to the fact that finding housing and moving can be time consuming. Often a landlord will require deposits and rent that may total more than $1000. Further, the caregiver is not yet employed and therefore, without a source of income to pay rent. All of these factors may severely limit housing options with an instant eviction. B. Vulnerable Adults Despite these concerns, it is important to remember that most live-in caregivers provide care for the old or disabled, individuals who are often “vulnerable”67 or “incapacitated adults”68—as those terms are defined by statute. These adults’ vulnerability or incapacity mandates that concern over their welfare be paramount over the rights of a well-bodied caregiver who may be neglecting, abusing, or exploiting the very individual he or she is tasked to protect and provide care for. The statistics on elder abuse are staggering. A report by the American Psychological Association estimates that “every year, an estimated 4 million older Americans are victims of physical, psychological, or other forms of abuse and neglect.”69 A study by the U.S. Department of Justice in 2009 found that 11% of individuals sixty years and older reported experiencing abuse within the previous year.70 Elder abuse victims are more than twice as likely to die prematurely than older adults who are not victims of abuse.71 Although the number of reported abuse incidents increase each year, it is estimated approximately 66

See § 12-1173.01. § 46-451(A)(9) (defining a vulnerable adult as an individual who is “unable to protect himself from abuse, neglect, or exploitation . . . .”). 68 § 14-5101(1) (defining an incapacitated person as “any person who is impaired . . . to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.”). 69 Elder Abuse and Neglect: In Search of Solutions, AM. PSYCHOLOGICAL ASS’N, http://www. apa.org/pi/aging/resources/guides/elder-abuse.aspx?item=1 (last visited Apr. 22, 2013). 70 OFFICE OF JUSTICE PROGRAMS, U.S. DEP’T OF JUSTICE, FACT SHEET: ELDER ABUSE AND MISTREATMENT (2011), http://www.ojp.usdoj.gov/newsroom/factsheets/ojpfs_elderabuse.html. 71 XinQi Dong et al., Elder Self-Neglect and Abuse and Mortality Risk in a Community Dwelling Population, 302 J. AM. MED. ASS’N (2009). 67

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84% of elder abuse incidents are not reported.72 Further, victims who are abused later in life are less likely to report abuse because of factors such as fear of retaliation, fear and shame, and the perceived power differential between the older victim and the caregiver; isolation; the loss of a social network; language barriers; financial barriers; and concern about being removed from their own homes to nursing homes.73 A report published by the Wisconsin Department of Health Services, Bureau of Aging and Disability Resources found that 90.6% of reported abuse incidents occurred in the elder victim’s home, and that 3.8% of the reported incidents were from a service provider.74

C. Arizona’s Elder Abuse Laws Arizona has enacted a comprehensive scheme of regulation, the Adult Protective Services Act (“APSA”), also known as the Elder Abuse Laws, both to protect vulnerable and incapacitated adults and to provide civil and criminal penalties for their abuse, neglect, or exploitation.75 Caregivers who neglect incapacitated or vulnerable adults are subject to criminal prosecution;76 a civil remedy is also available to incapacitated or vulnerable adults whose life or health have been endangered or injured by neglect, abuse, or exploitation.77 These laws were enacted “to increase the remedies to and for elderly people who had been harmed by their caregivers.”78 The underlying policy is “to pro72 NATIONAL CENTER ON ELDER ABUSE, THE NATIONAL ELDER ABUSE INCIDENCE STUDY, FINAL REPORT 4 (1998), http://www.aoa.gov/AoARoot/AoA_Programs/Elder_Rights/Elder_ Abuse/docs/ABuseReport_Full.pdf. 73 Elder Abuse Information and Training Guide, ARIZ. ATTORNEY GEN.’S OFFICE, http://www. azag.gov/seniors/elder_abuse_guide.html (last visited Apr. 22, 2013) [hereinafter Training Guide]. 74 Elder Abuse in Wisconsin, COAL. CHRONICLES (Wis. Coal. Against Domestic Violence), Oct. 2010. 75 H.B. 2431, 39th Leg., 1st Reg. Sess. (Ariz. 1989). Although frequently referred to as the “Elder Abuse Laws,” the APSA applies to all persons eighteen years of age or older who are unable to make informed decisions regarding their care or who are unable to protect themselves from abuse, neglect, or exploitation. Id. § 46-451(A). 76 Id. § 46-455(A). The legislature enacted § 46-455 in 1988, which criminalized abuse of an incapacitated or vulnerable adult. H.B. 2399, 38th Leg., 2nd Reg. Sess. (Ariz. 1988). The legislature initially classified elder abuse by a caregiver as a class 1 misdemeanor. Id. (elder abuse is currently a class 5 felony under § 46-455(A)). The next year, the legislature expanded the elder abuse statute by creating a statutory civil cause of action for elder abuse. See H.B. 2431, 39th Leg., 1st Reg. Sess. (Ariz. 1989). The legislature thereby distinguished civil actions for elder abuse from other personal injury actions and created a statutory civil cause of action for elder abuse. See In re Guardianship/ Conservatorship of Denton, 945 P.2d 1283 (Ariz. 1997) (where representative of a victim of elder abuse sued under § 46-455). 77 § 46-455(B). “Abuse” includes physical or sexual abuse or involuntary confinement. § 46451(A)(1). “Neglect” occurs when an individual with a duty to care for another fails to discharge that duty. See § 46-451(A)(6). “Exploitation” refers to the “illegal or improper use of a vulnerable adult or his resources for another’s profit or advantage.” § 46-451(A)(4). 78 Estate of McGill v. Albrecht, 57 P.3d 384, 387 (Ariz. 2002) (en banc).

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tect some of society’s most vulnerable persons from abuse, neglect, and exploitation.”79 While Arizona’s Elder Abuse Laws are a step in the right direction, they are woefully inadequate in many respects. First, for abuse “to be actionable under the APSA, the negligent act or acts (1) must arise from the relationship of caregiver and recipient, (2) must be closely connected to that relationship, (3) must be linked to the service the caregiver undertook because of the recipient’s incapacity, and (4) must be related to the problem or problems that caused the incapacity.”80 In a live-in caregiver situation, abuse or exploitation may not necessarily arise out of the employment situation or may not arise out of the problem or problems that caused the incapacity. An argument could be made that there is no remedy provided to a victim whose live-in caregiver simply starts stealing items out of the home, has visitors over that intimidate the incapacitated or vulnerable adult, or has the television on in his or her room all night long so loudly that the “employer” cannot sleep. Further, reports of suspected abuse, neglect, or exploitation should be made to the proper authorities, which can include the local police department, sheriff’s office, or Adult Protective Services.81 Once a report has been received, an investigation is undertaken.82 However, with ever-tightening budgets, the authorities investigate to the best of their abilities but even in vigorously prosecuted cases, it is difficult to get a conviction or civil remedy.83 The perpetrators are often judgment proof, as they have little to no assets from which to recover civil penalties.84 The victims themselves often make poor witnesses; due to their impairments, they often cannot remember what happened.85 In many circumstances, incidents of abuse are never reported.86 Victims may be embarrassed and reluctant to admit they have been abused, neglected, or exploited.87 Some may be reluctant to come forward because they fear that 79 In re Estate of Winn, 150 P.3d 236, 238 (Ariz. 2007). See also In re Guardianship/Conservatorship of Denton, 945 P.2d at 1287 (“The legislature’s intent and the policy behind the elder abuse statute are clear. Arizona has a substantial population of elderly people, and the legislature was concerned about elder abuse”). 80 Estate of McGill, 57 P.3d at 389. 81 See § 46-454; see also Training Guide, supra note 73. 82 See Training Guide, supra note 73. 83 See, e.g., Laurel Chesky, Financial Exploitation of Elders is Rarely Reported, Hard to Prove, and May Particularly be a Problem in Monterey County, MONTEREY COUNTY WKLY. (June 17, 1999), http://www.montereycountyweekly.com/news/1999/jun/17/elder-abuse-thesilent-crime-061799/. 84 LISA NERENBERG, FORGOTTEN VICTIMS OF ELDER FINANCIAL CRIME AND ABUSE 27 (1999), http://www.ncea.aoa.gov/Resources/Publication/docs/fvefca.pdf. 85 Chesky, supra note 83. 86 Id. 87 Id.

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without the caregiver in the home, they will be placed in a nursing home.88 A victim may be dependent on the abuser for transportation and, without that assistance, may be isolated from friends, activities, and social circles.89 There is also the very real fear the caregiver may retaliate if the victim reports any abuse. In these types of situations, more than any other, it is important that family members or other involved individuals have the ability to immediately remove an abusive caregiver from the home. Time is crucial. In other domestic violence situations, the victim is most at risk when he or she decides to leave the abuser.90 A similar situation can arise in the case of an abusive live-in caregiver, who may become upset or even irate when the employer/victim or his or her family decides to terminate the caregiver’s employment. Arizona’s Elder Abuse Laws do provide for restraining orders or temporary injunctions to protect the vulnerable or incapacitated adult.91 However, those remedies can take time that allows the abuse to continue in the interim.92 If there is actual physical violence taking place in the home, Arizona’s domestic violence statute may be construed to apply to a live-in caregiver situation as A.R.S. § 13-3601(A)(1) includes the situation in which the relationship between the victim and the defendant is merely that of “persons residing or 88

See Training Guide, supra note 73. See id. 90 See, e.g., Ronet Bachman & Linda Salzman, Violence Against Women: Estimates From the Redesigned Survey 1, Bureau of Justice Statistics (Jan. 2000); Mary Ann Dutton, Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome, 21 HOFSTRA L. REV. 1191 (1993); Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1 (1991) (explaining the batterer’s attempt to maintain control causes the batterer to become more acutely violent and potentially lethal if the victim leaves or attempts to leave). In State v. Greene, the Arizona Supreme Court noted that domestic violence situations are often dangerous “because the possibility for physical harm or violence escalates rapidly.” State v. Greene, 784 P.2d 257, 259 (Ariz. 1989). The court also stated that the call itself creates a sufficient indication that an emergency exists to allow an officer to enter a dwelling if no circumstance indicates that entry is unnecessary. Id. at 258-59. In State v. Tassler, the court held that “in responding to a call regarding spousal assault, officers must have the freedom to prevent further abuse. . . . [and] the act of calling the police was likely to enrage further the assailant.” State v. Tassler, 765 P.2d 1007, 1009 (Ariz. Ct. App. 1988). 91 ARIZ. REV. STAT. ANN § 46-455(F) and (G) (2012). 92 “The superior court has jurisdiction to prevent, restrain and remedy the conduct described in this section, after making provision for the rights of all innocent persons affected by such conduct and after a hearing or trial, as appropriate, by issuing appropriate orders.” Id. § 46455(F). “Before a determination of liability, the orders may include, but are not limited to, entering restraining orders or temporary injunctions or taking such other actions, including the acceptance of satisfactory performance bonds, the creation of receiverships and the appointment of qualified receivers and the enforcement of constructive trusts, as the court deems proper. Id. § 46455(G). The process requires notice and hearing for the affected parties. Id. § 46-458. 89

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having resided in the same household.”93 In such a situation, the abuser may be arrested with or without a warrant if, inter alia, a police officer has probable cause to believe that domestic violence has occurred.94 However, in the event the abuse, mistreatment, or neglect that does not involve physical violence, the domestic violence laws are inadequate to immediately remove the abuser from the home. As such, there must be a clear and immediate remedy for the victim—a remedy that provides for the caregiver’s immediate removal from the premises in order to protect the victim from further abuse or exploitation.95

VI. PROPOSED CHANGES TO CURRENT ARIZONA LAW Under current Arizona law, the question regarding an employer’s rights and obligations to a live-in caregiver becomes a fact-based analysis. Lacking a written agreement, Arizona law, as written, is too ambiguous to provide a clear remedy for the immediate removal of a live-in caregiver once his or her employment is terminated.96 The solution is simple. ARLTA should be amended so that live-in caregivers are exempted from the Act. While a “caretaker” or “manager” can be interpreted to include a caregiver, the terms are still ambiguous enough that the definition of a “caregiver” does not necessarily fit within their Act’s definitions. Further, it is not enough to simply add the term “caregiver” to A.R.S. § 33-1308(5). As currently written, the statute provides the following as one of the exemptions to the Act: “Occupancy by an employee of a landlord as a manager or custodian whose right to occupancy is conditional upon employment in and about the premises.”97 93

Id. § 13-3601(A)(1). Id. § 13-3601(B). 95 This Article does not purport to be comprehensive with regard to the serious issue of elder abuse, but rather, in the circumstances when potential abuse of any kind is identified or suspected by the family or guardian or victim herself, this Article proposes a better-defined remedy under Arizona law. 96 An employer must additionally be careful not to alter the at-will employment status with implied in fact contract terms that alter the at-will status and the employer’s ability to terminate the employee at any time. See, e.g., Demasse v. ITT Corp., 984 P.2d 1138 (Ariz. 1999) (implied in fact contract terms may create an exception to employment that is completely at will). In Demasse, the court held that “while employment contracts without express terms are presumptively at will, an employee can overcome this presumption by establishing a contract term that is either expressed or inferred from the words or conduct of the parties.” Id. at 1143. Thus, implied in fact terms such as one that specifies the duration of employment or limits the reasons for dismissal may become part of the contract. Id. Terms such as these could seriously impair an employer’s ability to terminate a live-in caregiver’s employment and remove the caregiver from the premises at that time. 97 § 33-1308(5). 94

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Adding “or live-in caregiver” could have the unintentional consequence of limiting the exemption to the three enumerated job descriptions.98 As such, the better solution would be to eliminate any job description from the exemption and simply provide that the exemption applies to: “Occupancy by an employee of a landlord whose right to occupancy is conditional upon employment in and about the premises.” Rather than limiting the exemption to certain categories of employment, the clarification would create the presumption that absent a written agreement to the contrary, a live-in caregiver’s residence on the premises is conditional upon his or her employment, thereby allowing a vulnerable adult to terminate a live-in caregiver’s employment and remove him or her from the premises immediately upon termination. This would protect the vulnerable adult from additional abuse and possible retaliation. The Arizona Department of Economic Security reports that for the 2011 state fiscal year, the Arizona Adult Protective Services system reported that paid caregivers and residential management providers accounted for 19% of substantiated reports of alleged perpetrators of abuse, neglect, or exploitation in Arizona during the period of July 1, 2010, through June 30, 2011.99 In the event that a live-in caregiver is suspected of abuse, neglect, or exploitation, the alleged perpetrator should not be able to claim that he or she has the additional protections of a tenant, which would prevent the victim and her family from removing the alleged perpetrator from the home. Rewriting the law would not prevent an innocent caregiver from seeking an appropriate remedy; however, the personal and financial safety of the vulnerable and incapacitated adult should be paramount—especially within his or her own home.

98 See Ariz. Pub. Serv. Co. v. Town of Paradise Valley, 610 P.2d 449 (Ariz. 1980) (explaining “Ejusdem generis is applicable to statutes in which there are listed specific categories followed by a general category: ‘Where, in a statute, general words follow a designation of particular subjects or classes of persons, the meaning of the general words will ordinarily be presumed to be restricted by the particular designation, and to include only things or persons of the same kind, class, or nature as those specifically enumerated, unless there is a clear manifestation of a contrary purpose. A statute enumerating things inferior cannot, by general words, be construed so as to extend to and embrace those which are superior. In accordance with the rule of ejusdem generis, such terms, as ‘other,’ ‘other thing,’ ‘others,’ or ‘any other,’ when preceded by a specific enumeration, are commonly given a restricted meaning, and limited to articles of the same nature as those previously described.’”). 99 DIV. OF AGING & ADULT SERV., DEP’T OF ECON. SEC., ADULT PROTECTIVE SERVICES ANNUAL ACTIVITY REPORT STATE FISCAL YEAR 2011 8 (Dec. 2011).