Understanding Undue Influence in Elder Financial Exploitation Cases
Elder financial exploitation, including theft, is not always as simple as physically taking money or valuables from the victim or even tricking the victim into giving the perpetrator the objects of their desire. In some cases it is more of a “long con” in which the perpetrator overpowers the will and decision-making of the victim to coerce them into doing things they would not otherwise do. This kind of behavior is generally referred to in the law as undue influence and is considered a form of financial elder abuse. A California financial elder abuse attorney can help you determine whether undue influence has occurred and the best options for addressing it.
What Is Undue Influence?
Undue influence in California law is defined in the Elder Abuse and Dependent Adult Civil Protection Act as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” Cal. Welf. & Inst. Code § 15610.70. It is an intensely fact-based analysis that requires observers to consider a number of factors. When determining whether an outcome was procured by undue influence, the Act directs courts to consider the following circumstances:
- The vulnerability of the victim. Evidence of the victim’s vulnerability includes, 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.
- The influencer’s apparent authority. Evidence of the influencer’s authority includes the influencer’s status as a fiduciary, family member, caregiver, health care professional, legal professional, spiritual adviser, expert, or other qualification.
- The actions or tactics used by the influencer. Evidence includes (a) controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep; (b) use of affection, intimidation, or coercion; and (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.
- The equity of the result. Evidence of the equity of the result includes 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, and the appropriateness of the change in light of the length and nature of the relationship.
Cal. Welf. & Inst. Code § 15610.70(a).
The person alleging undue influence generally bears the burden of proving that the document at issue was the result of undue influence. However, in cases of probate fraud, California courts presume that a will or trust was the result of undue influence under certain circumstances. This presumption arises when the following three elements can be shown:
- The existence of a confidential relationship between the victim and the person alleged to have exerted undue influence (such as that of caregiver-ward)
- Active participation by the alleged influencer in the preparation of the will or trust
- An undue benefit accruing to the alleged influencer through the will or trust
In cases where this presumption is established, the burden then shifts back to the proponent of the will or trust to show that it was not procured by undue influence. An example is the legal presumption of fraud or undue influence where the beneficiary of a donative transfer from the victim is a “care custodian” of the victim. Probate Code § 21360 et seq. For more information about establishing undue influence, please speak to a California financial elder abuse lawyer.
How Undue Influence Leads to Financial Exploitation
Undue influence can easily lead to financial exploitation, as it typically results in the victim’s intentions being totally replaced by the intentions of the perpetrator. Once the perpetrator is in control, he or she can induce the victim to do what he or she wants them to do. Undue influence typically results generally in financial elder abuse and, more specifically, in estate planning and probate fraud.
Financial Elder Abuse
Financial elder abuse occurs when the perpetrator’s wrongful actions result in financial harm to an elderly victim. It can be as simple as stealing money and valuables from the victim to as sophisticated as complex frauds and schemes. Financial elder abuse can also occur under the Elder Abuse and Dependent Adult Civil Protection Act where the perpetrator “takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder” through undue influence. Examples of this type of abuse could include:
- Convincing the victim to open a joint bank account with the perpetrator
- Convincing the victim to transfer real estate, vehicles, and personal property into the perpetrator’s name
- Convincing the victim to take out lines of credit for the perpetrator’s use
- Convinces the victim to invest in the perpetrator’s business venture
Anyone assisting the perpetrator in any of this conduct, also commits financial elder abuse. Cal. Welf. & Inst. Code § 15610.30(a)(2).
Undue influence is particularly dangerous in the estate planning context, as perpetrators often use undue influence to coerce victims into disposing of their estates in manners that are contrary to their wishes. Once the victim has passed away, it can be more difficult for courts to make a determination that the will, trust, or other estate planning document was procured by undue influence. While the burden of proving undue influence generally rests on the party alleging it, the law allows for presumptions of undue influence in certain cases (as covered above).
California law also allows for a presumption of undue influence when a will or trust makes a donative transfer to one or more of the following “prohibited persons,” among others:
- A person who drafted the instrument
- A person who transcribed the instrument or caused the instrument to be transcribed and who was in a fiduciary relationship with the transferor when the instrument was transcribed
- A care custodian of the transferor if the instrument was executed during the period the custodian was providing care
- A care custodian who commenced a marriage, cohabitation, or domestic partnership with the transferor if the instrument was executed less than six months after the marriage, cohabitation, or domestic partnership
Get Help Proving Undue Influence From a San Francisco Financial Elder Abuse Attorney
Proving undue influence can be difficult, as the analysis is intensely fact-specific and requires extensive evidence. Your best bet for succeeding on a claim of undue influence is with the counsel of an experienced attorney. For more information, please contact a San Francisco financial elder abuse lawyer at the Evans Law Firm, Inc., by using our online contact form or calling 415-441-8669 or toll-free at 1-888-50EVANS (888-503-8267).