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Have you ever heard the term “undue influence”? Most people don’t really understand what it means. Is it just some weird legal thing? Or should you understand it? When it comes to seniors and financial abuse, the term becomes very important, because undue influence often leads to financial abuse.
The legal concept of undue influence goes way back in history to the 1600s. A lot of our law in the US is based on what our British ancestors did. And sure enough, there is an old case in which a woman pretended to love an older man and pressured or influenced him to give her all his money and property on his death. She didn’t love him. She was married to someone else.
The elderly man changed his will and left everything to her, and not to his own family. His family sued, she lost and they got the estate he would have left to them if he hadn’t been under the influence of this woman. And the English court found that she had used undue influence on him to get him to change his will.
Centuries have passed but the same problem exists today. People use their relationship with someone to get them to give money or property to the influencer. We hear about it all the time at AgingParents.com where we work with families helping them deal with issues about aging loved ones. The struggle in families about control over an aging parent’s finances often comes about because someone thinks another family member is using undue influence over a vulnerable elder. And sometimes it’s true.
Keeping it simple and non-legal sounding this is the essence of the definition. Here’s how we define it in CA:
Undue influence is excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in something that isn’t in the influenced person’s best interests.
A person who is elderly, frail, dependent on others for care or who is undergoing a lot of stress is particularly vulnerable.
The influencer is usually in a position of trust, like a family member or a position of authority over the one being influenced. The person in authority could be a professional, such as a financial advisor or lawyer, or it could be a caregiver.
What are some of the classic warning signs of undue influence?
Here are five of them:
- The victim is vulnerable, such as shortly after a spouse has died or because he or she has dementia and can’t make good decisions. But a person can be vulnerable just because of being lonely too.
- The influencer assumes power, authority or controlover the one being influenced. This could come from the relationship, where the one being influenced thinks the influencer can be trusted and doesn’t question them.
- Isolation of the senior, the influencer does things in secret, in a hurry or because the influencer tells the victim that everyone else is against her.
- Sudden changes in a long standing estate plan, including a will and or trust. The so-called “natural heirs” or family are cut out of what they were going to inherit and it goes to someone else or only one person in the family as a result of the senior being influenced to make those changes.
- Something happens that is not fair or reasonable for the victim. For example, another seizes control over their assets and they can no longer choose what to do with them. Or the elder’s home is sold and he is forced to go to a nursing home against his will. These are examples of harm or an unfair result to the victim.
Undue influence always involves money, property or an agreement that affects the elder’s welfare.
If you see any of the warning signs happening to someone in your life, speak up! Seek advice from an elder law attorney. Working together, we can all do something to stop elder abuse.
Related: Your Aging Parent Living at a Distance May Be at Risk