As people age, certain everyday activities may become more difficult and dangerous. An older person may reach a time when eyesight or other health concerns make driving no longer an option. Additionally, keeping up with the latest technology is hard at any age, but can be more challenging late in life. Therefore, children or family friends start to become more active in an aging person’s life. Having friends and family you can count on is essential, and if you take care of a parent it can be incredibly time-consuming and that also job impacts your finances. (see the Blog Post on Sandwich Generation: Planning for your Parents, Children & Yourself) However, some people will take advantage of this situation through undue influence.
Welfare and Institution California Code section 15610.70 defines undue influence as follows:
(a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:
(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.
(2) The influencer’s apparent authority. Evidence of apparent authority may include but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.
(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:
(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.
(B) Use of affection, intimidation, or coercion.
(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.
(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received or the appropriateness of the change in light of the length and nature of the relationship.
(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.
In determining whether a result was produced by undue influence, several factors must be considered, including the vulnerability of the victim, the influencer’s apparent authority, the actions and tactics used to influence the victim, and whether the result was inequitable. When determining if a person has been unduly influenced, there are several factors you can look to in making that determination. Typically, a combination of the below items will be used to support an undue influence argument.
Sudden Changes: If a person suddenly changes their trust, will or power of attorney after a long period, it could be a sign of undue influence. It also could mean that the documents needed updates. Other questions such as who made the appointment and who was present in the appointment will be key pieces of information.
Isolation: If the person making the changes is isolated from friends and family, it could be a sign that someone is exerting undue influence over them. Do other friends and family members have access to the person? Are visits being limited or monitored? This could simply be because the person cannot drive or there are increases in doctor’s appointments, making it difficult to schedule, but it can also be indicative of influence. Further, it is important to look at what types of new special relationships are taking priority that did not exist beforehand.
Pressure: If the person making the changes is under pressure from someone else, it could be a sign of undue influence. This pressure can be subtle, as in I’ll make sure your wishes are carried out, leave your assets to me or it could be obvious threats and manipulation.
Mental Capacity: If the person making the changes is not mentally capable of making these decisions, or has a frail deteriorating mental state undue influence arguments can be made. Having up-to-date information regarding a person’s health and capacity at the time changes were made is important. However, an undue influence claim is different from a capacity claim often the same supporting facts are used in each of these claims.
Unusual Requests: If the changes being made are unusual or go against the person’s previous wishes, it could be a sign of undue influence. This can also take the form of gifts to unexpected persons that would normally not be a natural object of the individual’s affection or bounty.
It’s important to be aware of these signs and to seek legal advice if you suspect that someone is being unduly influenced in their decisions regarding their trust, will, or powers of attorney. Further, as a family member or friend that is just trying to help, it is important to be mindful of your own actions to ensure they are not misconstrued.