What is Undue Influence
Undue influence is a psychological and legal concept that is often tied to elder abuse. Psychologist Margaret Singer was one of the first to connect elder abuse and undue influence, defining it as: “(w)hen people use their role and power to exploit the trust, dependency, and fear of others. They use this power to deceptively gain control over the decision making of the second person.” The psychological tactics of undue influence have been compared to tactics used by cults, in brainwashing, by sexual abusers who “groom” their victims, and by perpetrators of domestic violence. For purposes of this discussion, we are focusing on the links between undue influence and elder abuse.
According to California Welfare and Institutions Code Section 15610.30, elder abuse occurs when a person “[t]akes, secretes, appropriates, obtains, or retains…real or personal property of an elder or dependent adult by undue influence,” as defined in Welfare and Institutions Code Section 15610.70. Welfare and Institutions Code Section 15610.70 defines undue influence as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” Welfare and Institutions Code 15610.70 also directs courts to consider: (1) The victim’s vulnerability; (2) the influencer’s apparent authority; (3) the tactics used by the influencer; and (4) the inequity of the result.”
Pattern of Behavior in Undue Influence
In my nearly 15 years of practicing law, I have primarily represented the loved ones of the undue influence-elder abuse victim through conservatorships and court proceedings to invalidate estate planning documents obtained through fraud and undue influence. During the lifetime of the victim, conservatorships and other court proceedings can be used to try to stop the elder abuse and undue influence. After the victim’s death, trust and will contests can be used to try to invalidate documents that favor the influencer. In nearly all of those cases a pattern presents itself whereby the influencer gains access to the victim, isolates the victim from his or her support network, and then proceeds to use fear and intimidation of being alone to get the victim to give the influencer whatever he or she wants.
When this pattern of isolation and intimidation is taking place, it is often difficult for those who care about the victim to convince him or her that they are being preyed upon. It is a cruel irony that part of the “grooming” process creates a bond and sense of loyalty that the victim feels towards the influencer. When the family or friends try to intercede, the victim often lashes out at the people trying to protect him or her.
The Family Predator
I have seen numerous cases where the influencer is an adult child of the victim. They are usually the youngest child or a child who has “fallen on hard times” or “never found their way” and have little or no source of income to support themselves. In those cases, the parent is accustomed to having the adult child live in the home with them, rent free, and often gifts or “loans” money to this child. As the parent ages, that relationship seemingly morphs into one where the adult child becomes the caretaker and begins “helping with bill paying.” The more dependent the parent becomes on the child, the more abusive and unhealthy the relationship becomes for the parent. When the other children try to convince mom or dad that they are being abused, the protective instinct of the parent causes denial and defense of the influencer. In my experience this happens because the parent is both protective of their child, but also because the parent does not want to believe that they could be victimized by anyone much less their own child. Additionally, influencer has usually anticipated that his or her siblings will protest this new relationship between the parent and the influencer. They often discredit these concerns before they are even voiced by repeatedly telling mom or dad how mean the rest of the family is to the influencer or providing some other reason for the siblings to dislike or distrust the influencer. By the time the other children voice their concerns to mom or dad, the “stage has been set” it’s too late for the other children or family members to reason with mom or dad.
The Romantic Predator
In other instances, it is a caregiver or someone pretending to have a romantic interest in the victim. This is often the case when a caregiver is brought in towards the end of the life of the victim’s life partner or spouse. The caregiver offers to continue to help out after the passing of the partner or spouse. In my experience, this occurs most often with women preying upon elderly widowers who are lonely and want to believe that they have a romantic relationship with this person, who has likely convinced their victim that they will be getting married or are going to share a life together. They again use their influence over the victim to turn him or her against the family members well before the family even realizes the relationship is problematic. Any attempts of the family to try to sever this relationship are met with resistance that often damages the relationship between the victim and the person trying to protect him.
As you can imagine, or if you have experienced it, you know firsthand, these are the most frustrating types of cases. The law presumes that an adult has capacity to make decisions for himself or herself and the influencers are motivated to keep the victim “under their spell.” The influencer will say or do anything to try to discredit the family and friends trying to protect the victim. They will turn the victim against his or her family members and further isolate the victim. It becomes very difficult to get close enough to get the proof of undue influence needed to convince a Judge to remove the influencer from the victim’s life. Even then, you may not be applauded for your efforts as the victim, still under the spell, will be very upset to have the influencer removed from their life.
A New Opportunity
After nearly 15 years of working with families both before and after the death of their loved ones who have been victimized by influencers, last week was the first time I had the opportunity to actually work with a potential victim who realized they were in an unhealthy situation and sought help. My client recognized that things were not right. She noticed that she had difficulty making and receiving calls with certain individuals. She noticed that her conversations were never private. She felt threatened and demoralized any time she tried to assert herself. Thankfully, she was still able to reach out to me. She expressed fear of this individual and a desire to have them out of her home. Although I wanted to see the good in this individual and believe that this relationship was, at least at one time, based on love, it clearly was no longer a healthy environment for my client. With the help of a team of other professionals, I am relieved to say that we have rallied around her and she is now safe.
Now that the influencer has been removed from her home and life, we have seen that the pattern stemmed beyond the missed calls and lack of privacy. Her friends and I have begun comparing notes and reporting conversations where the influencer would tell all of us of “crazy” behavior of my client in an effort to try to diminish any pleas for help she made to me, her friends and others and to discredit my client. My client felt unsafe and like she had nowhere to turn because this individual was one-by-one turning her friends away and making my client more and more dependent on the influencer. My client was also being verbally and emotionally abused, so she was afraid for her own safety.
While a lot of victims suffer from diminished capacity, due to emotional and/or physical ailments making them easy victims, not all of them are in poor health. This experience with my client gave me hope that maybe individuals who are likely victims could be educated on the signs of undue influence so that they may be able to recognize them when they are being groomed and seek help before it is too late. It’s vitally important that friends and other loved ones also recognize the signs and know that when their concerns are dismissed, it’s because of the influencer’s “grooming.” If you have a dependent adult or elderly individual in your life or family, I urge you to keep open lines of communication and be vigilant observing their relationships with individuals who may appear trustworthy. If they express any concern or share stories that cause you concern, do not ignore the signs. If the apparent victim dismisses your concerns, know that they were prepped to provide that response and they are repeatedly being brainwashed to think and say whatever the influencer wants.
While I hope you will never need this information, there are resources for reporting Elder Abuse. We can help. If you believe your loved one is or was a victim of Undue Influence or Elder Abuse, contact Cannon Legal Firm for a free consultation or information on additional public and/or private resources for reporting abuse.
Contact Cannon Legal Firm today. We proudly serve Seal Beach, Long Beach and the surrounding communities for all your Estate Planning, Trust & Estate Litigation, Trust Administration and Probate needs. Contact us for a free consultation or schedule a Zoom or telephone appointment online. Dana@CannonLegalFirm.com – 562.543.4529 (Voice and Text) – www.CannonLegalFirm.com