Undue Influence

Unfortunately, as baby boomers began to reach retirement age, financial abuse of the elderly became a growth industry.  Fraudsters prey on the elderly because of their vulnerability, and the effects can be devastating to those who are too old, tired or confused to protect themselves.  If you suspect an elderly person is being exploited you do not have to be a close friend or relative to protect that person.  Your lack of a financial incentive adds to your credibility. There are many types of elder abuse and different possible signs to look for.  The focus here is undue influence and what you should do if you suspect an elderly person is being taken advantage of financially.  Mary Quinn’s article Undue influence and elder abuse: Recognition and intervention strategies (CE), published in the Journal of Geriatric Nursing, explains that “Undue influence is the substitution of one person’s will for the true desires of another.”  Undue influence is almost always associated with a breach of trust.

As a general rule, people – even though they may be elderly, sick and depressed – have the right to do what they want to with their property. The question is whether the benefactor is acting volitionally.  If you have reason for concern, you may want to determine whether the elder is independent and self-reliant or does he need help with activities of daily living?   Is someone else in control of his or her financial affairs?  Is there a power of attorney involved?   Other circumstances to look for include whether the suspected victim is getting independent advice?  Is he or she isolated from family, friends and outside activities?  Has an “advisor” benefited excessively from the elder?  Asset transfers or unusual transactions between a susceptible person and an advisor are highly suspect and may justify asking a court to appoint a conservator.

After death, only people with “standing” – generally defined to be those who would have benefitted but for the undue influence – are allowed to challenge a will or transaction involving a decedent.  Most often the suspicion of undue influence arises in connection with estates when family members learn of diminished assets or suspicious bequests in their loved ones’ will.  You might find that substantial assets passed outside the estate by survivorship clauses, beneficiary designations or gifts shortly before death.  Since you cannot ask the decedent, how do you investigate whether your loved one was exploited?  A potential starting point is a lawyer who drafted the will or document of conveyance. Lori A. Stiegel, Senior Attorney, ABA Commission on Law and Aging, in conjunction with Mary Joy Quinn, Director (ret.), Probate, San Francisco Superior Court addressed the lawyer’s obligation to protect the client from undue influence.  In the June 2017 Issue, Brief they pointed out that:

For many years, the ABA Commission on Law and Aging has urged lawyers to screen all older adults for elder abuse during initial interviews (“universal screening”), whether by telephone or in-person. Learning about risk factors and indicators of undue influence is necessary to screen effectively and provide competent services. Concerns about possible undue influence should affect a lawyer’s determination of who is the client, how to communicate with the client, and what advice and counsel should be provided. Case law recognizes that a key factor in assessing undue influence is whether the alleged victim truly had independent counsel.

You might want to determine whether the attorney who drafted the will had a long-standing relationship with the decedent or the favored beneficiary? Did the beneficiary play any part it procuring the gift or will?  Who witnessed the will and what were the surrounding circumstances?  A family recently approached me about the validity of a will that disinherited them in favor of a paramour.  I contacted the drafting attorney who sent me a video of the execution of the will. Upon watching the video it was clear that the decedent was free from undue influence.  I complimented my colleague for having protected his client’s estate from enduring what could have been expensive and protracted litigation.

Elder abuse is wrongful conduct that should be punished – not rewarded by the unjust enrichment of fraudsters.  If you are concerned, investigate and don’t hesitate to get professional advice.

 


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