Undue Influence and Wrongful Use
In financial elder abuse cases, there’s a tremendous amount of terminology to understand as victims of fraud and abuse try to wade through their financial records and determine where the fraud occurred and what violations were actually committed.
Two important terms to keep straight in your mind when you are dealing with financial elder abuse are undue influence and wrongful use. These terms are used most frequently in cases where the financial abuser is someone close to the victim — a friend, caretaker, neighbor, or even a family member. In these cases, the abuser typically begins by establishing a close relationship with the victim and gaining his or her trust.
Once that trust has been granted, the abuser can then manipulate the older person into gaining access to their financial records and accounts or influencing the decisions they make regarding their money.
What is Undue Influence?
The law defines undue influence as any act of one person taking advantage of another person’s weaknesses, which could be either weakness in trusting the perpetrator or mental instabilities and infirmities. Undue influence can be used to describe situations in which a friend or family member uses his or her relationship with an older person to convince that person to do certain things.
For example, a financial predator in this position may drop hints about needing money as a gift or a loan, or may complain about their financial status to the older person for the purpose of convincing the victim to hand over cash and checks.
Other examples of undue influence include circumstances where a predator uses his connection with the victim to gain access to bank accounts and financial records or transact business on the victim’s behalf or without the victim’s knowledge.
In 2009, the California Senate passed Bill 1140, which expanded the definition of financial abuse to include cases of undue influence. Thanks to this bill, undue influence can be prosecuted, and a victim of abuse for this reason can recover damages, costs and associated attorney’s fees with any prosecution.
Who is the Victim?
The elderly because of their mental and physical health needs are particularly vulnerable to undue influence. Especially at risk, are those that are recently widowed, geographically isolated or who have had significant or unexplained emotional changes. Although older white women, living alone, are found to be the most likely victims of financial elder abuse-elder abuse can happen anywhere and to anyone.
The following are risk factors for undue influence:
- Isolation : the perpetrator often takes the elderly person away from family and friends in order to have greater influence.
- Dependency : the perpetrator makes the victim reliant on him or her. This takes on many forms ranging from relying on the perpetrator to make meals to having the perpetrator help pay the bills.
- Emotional Manipulation and/or Exploitation of a Vulnerability : the perpetrator takes advantage of how the victim feels. For example the perpetrator might take advantage of victim’s feelings of guilty and indebtedness because the person helps the victim with their basic needs.
- Trusting Relationship : the perpetrator will try to establish a close relationship to the victim, for example that of a caretaker or a close friend.
- Active Involvement in legal and financial transactions: the perpetrator becomes actively involved in the victim’s legal and financial transactions.
- Acquiescence : the victim begins to passively go along with any transactions or actions of the perpetrator.
- Loss/ Financial Loss : a financial loss of money by the victim
- Mental Cognition/Lack of Capacity : the victim has a lowered ability to think for oneself
What is Wrongful Use?
In addition to including undue influence in the elder abuse legislation, Senate Bill 1140 also defined “wrongful use” in terms of these cases. According to the legislature, wrongful use means any instance of a person taking a senior citizen’s property when that person knows or should have known that taking the property would have harmful repercussions for the senior citizen.
In real estate and commercial transactions, an agent or salesperson who misrepresents properties or sales values to an older person is not allowed to make a sale to that person if he knows that the sale will be financially detrimental to the person. This is one solid example of wrongful use, and often, elders fall victim to this form of abuse.
What are the “Red Flags” of Undue Influence?
Although undue influence can be difficult to spot because every situation is unique, there are a few signs one can look for. First, a drastic change in spending habits can signal possible undue influence; for example, a person who lived his or her entire life frugally now begins making extravagant purchases. Next, a person who changes his or her will in a way that is inconsistent with the prior will. Note that not all cases of undue influence have these red flags.
At the Evans Law Firm, Inc., we represent older Californians who have been victimized by financial abuse or misconduct. To discuss your case, contact a San Mateo County financial elder abuse attorney today at 415.441.8669 or www.evanslaw.com.