Defining Undue Influence in Elder Abuse Situations

b3ims-0adiw-frantzou-fleurine-300x140Financial elder abuse comes in many different forms, yet it often has the underlying element of undue influence exerted by a person over an elderly individual. During financially abusive situations, this undue influence results in a family member, caretaker, friend, or stranger unlawfully gaining money, real estate, personal property, or other assets from a senior. These circumstances are not only morally wrong, they are also illegal. Financial elder abuse can lead to both civil and criminal charges against the perpetrators.

Undue Influence under California Law

California’s Welfare and Institutions Code §15610.70 defines undue influence. It is excessive persuasion that causes an individual to act or not to act by overcoming that individual’s free will, resulting in inequity.

This is a high burden attorneys to prove in court on behalf of their elderly clients, particularly since the law states at an inequitable result without further evidence is not enough to prove undue influence. This is why the statute also lays out specific factors the court will review to determine if a person’s influence amounted to unlawful undue influence. These factors include:

  • The vulnerability of the victim. A victim’s physical and emotional vulnerability can be shown by his or her illness, incapacity, disability, age, injury, education, impaired cognitive function, isolation, dependency, and emotional distress.
  • Whether the person knew or should have known of the victim’s vulnerability.
  • The person’s apparent authority. Evidence of this can include but is not limited to the person’s status as a family member, care provider, health care professional, fiduciary, legal professional, spiritual advisor, or some other qualification or expert.
  • The specific actions or tactics used by the person. Evidence of these may include but is not limited to controlling necessities within the victim’s life such as medication, sleep, and access to others; use of intimidation, coercion, or affection; initiation of changes to the victim’s personal and property rights, haste or secrecy during these changes, making these changes at inappropriate places or times, and claims of expertise in these matters.
  • The equity as a result of the person’s actions. The court can look at the economic results to the victim, whether the end result coincided or diverged from the victim’s original intentions, and the appropriateness of the change based on the circumstances and length and nature of the relationship.

Undue Influence Does Not Require the Victim’s Mental Incapacity

Many individuals assume that an elderly person must have a mental or cognitive disability in order to be subject to undue influence. However, this is entirely untrue. While individuals with memory issues due to age, dementia, or Alzheimer’s may be at particular risk for financial abuse, elderly individuals who have their full memory and mental functions can still be taken advantage of due to excessive persuasion.  

Proving Undue Influence in Court

While concentrating on these specific factors, an experienced attorney can help you prove undue influence in court by using:

  • The victim’s testimony
  • The victim’s family member and close friends’ testimony
  • The victim’s health professionals’ testimony
  • Medical and mental health experts’ testimony
  • Documents that show transfers of money or property to the influencer
  • Other circumstantial evidence

Contact Brod Law Firm Today

If you believe your loved one has been influenced or forced to hand over control of money or property to someone else, contact a San Francisco elder abuse attorney from Brod Law Firm right away. We are ready to investigate the situation and help your loved one seek compensation. Call today at (800) 427-7020 to schedule a free consultation.

 

(image courtesy of Frantzou Fleurine)