What is Undue Influence?
The American Bar Association (ABA) defines undue influence as excessive persuasion on another person that overcomes their free will and causes them to act against their best interests. The ABA notes that the vulnerability of the victim should be considered in undue influence cases, such as those with diminished cognitive function or those under emotional distress.
Undue influence may be exercised by someone with apparent authority over the victim, such as a health care provider, spiritual advisor, fiduciary, or family member. For an undue influence charge to be considered valid, it must be established that the influencer knew, or should have known, that the victim was vulnerable to persuasion or deception.
When Does Undue Influence Occur?
Allegations of undue influence are most often seen in probate court in cases of:
- Guardianship petitions
- Disputed wills and trusts
- Petitions for conservatorships
Contract law cases, too, may see allegations of undue influence when a property deed, power of attorney, business succession plan, or another contract is disputed.
Evidence may come from family members or interested parties in the case, or from mandated reporters, like an assisted living nurse, hospital discharge planner, or Adult Protective Services caseworker. Many of these community professionals encounter circumstances that may indicate a vulnerable person is being coerced or unduly influenced by another, someone who does not have the victim’s best interests in mind.
As the number of people over 65 increases, there is a corresponding rise in elder abuse, which includes financial abuse or physical abuse to exert undue influence.
Five Ways To Identify Undue Influence
Perpetrators of undue influence may act in any number of deceptive ways, from outright fraud to more subtle coercion. The manner of someone’s vulnerability may open them up to a specific form of abuse; for example, someone bedridden in a nursing home may be coerced with physical threats to rewards, while someone living alone and lonely may fall victim to a charismatic fraudster who promises to provide emotional fulfillment and companionship.
Common tactics of an excessive influencer include:
- Controlling physical necessities or access to food, medical care, or sleep
- Limiting the victim’s interactions with others, especially those who know the victim well
- Limiting access to information, such as withholding bank account statements or limiting access to emails or the phone
- Using affection and friendliness to cultivate a relationship
- Coercion, either overt, like threats, or implied by instilling apprehension or fear in the victim
Most financial or elder abusers seek to use a combination of tactics to pressure the victim to comply with their demands.
Increasing Isolation of an Elderly Person From Friends and Loved Ones
Financial and elder abuse often takes place in secret, and abusers have an easier time taking advantage of a vulnerable individual if that person does not have a strong support network of family and friends. People living on their own, with a limited circle, or those who are housebound may be an easier target for an abuser than someone who receives frequent visitors.
Signatures on Newer Documents are Unalike Signatures on Older Documents
If you note that the signature on new estate documents, such as a Last Will and Testament or trust, differs from your loved one’s familiar signature, it could indicate that someone else signed the document on their behalf. Sometimes, a change in handwriting or a signature may be a sign of cognitive decline, but other times, a markedly different signature may indicate that your loved one was incapacitated at the time they drafted the will.
Sudden and Unusual Financial Changes
Large purchases or cash withdrawals from bank accounts indicate that someone may be financially abused. The influencer may gain access to the victim’s bank accounts and make purchases or withdrawals or coerce the account holder to do so. If you notice new account statements or new credit card bills at your loved one’s home, it may be that the influencer is coercing them to establish new accounts that you do not know about nor have access to.
Changes in Appearance or Physical Condition
An unkempt, disheveled appearance can indicate that someone is suffering cognitive decline and, therefore, more vulnerable to undue influence. Or, if your loved one has a caretaker yet still is dirty, has matted hair, or has bedsores, then it could be that the caregiver is collecting their fee but not providing the contracted care.
A New, Unrelated or Unexpected Person Begins Acting on Behalf of an Elderly Individual
Perhaps you hear your loved one begin to speak of a favored new attendant in their assisted living facility or that a new visitor from the local senior center has begun visiting them daily.
Consider new friends or associates of a vulnerable loved one carefully – some may be seeking ways to take advantage of your loved ones.
Proving Undue Influence
An experienced estate planning lawyer from The Law Office of Jason Carr can help you understand your legal rights and if the facts showcase fraud, help you build a case of undue influence. An undue case consists of several elements:
- Undue influence was exerted with the objective of producing a document favoring particular parties
- The testator (the victim or document writer) was susceptible to unjustified influence
- Another party had the opportunity to influence the testator
- Improper influence was attempted or exerted
- The influence resulted in the desired results
A dedicated estate planning lawyer can work with you and guide you through collecting the appropriate evidence for your claim.
An Estate Attorney Can Help Your Family
If you believe that someone exerted undue influence on your loved one prior to their death, or suspect that someone is exercising undue influence or perpetuating elder abuse, we can help. Contact The Law Office of Jason Carr today at (214) 800-2366 to speak with a compassionate and dedicated estate planning lawyer