What is Undue Influence and How an Elder Law Attorney Can Help

When a person has diminished mental capacity, is ill or isolated, they become more vulnerable to those who might do them harm.

At times, people take advantage of those who are elderly or vulnerable for financial gain or control over assets. One form of exploitation is undue influence.

Undue influence is not typically considered a crime in and of itself, but acts as the means for committing a crime. It is commonly recognized by the misuse of one’s influence to substitute his or her own will for the will of another. The influencer takes advantage of his or her position of power over another person and the consequences can be very destructive.

Who is at Risk?

According to the American Bar Association, there are predisposing factors that make a person susceptible to this type of exploitation. Elders can be more vulnerable because of their diminished mental capacity, emotional state or isolation. Often, the influencer is someone who is close to the elder and has the power to motivate the elder to make decisions. Below are some of the issues the American Bar Association has listed as predisposing factors.

  • Death of a Spouse
  • Depression
  • Isolation
  • Dependency
  • Diminished Mental Capacity
  • Need for Social Attention

What are Common Signs of Undue Influence?

In some cases, undue influence may not be identified until the person has died and the person’s family notices questionable choices in the person’s estate plan and documents. The following are a few warning signs of elder financial exploitation where undue influence may be suspected:

  • Unexpected changes to a person’s will, trusts, Power of Attorney or other legal documents
  • Changes to the victim’s relationship with friends or family members
  • Discrepancies between the victim’s choices and his or her previous wishes or intentions
  • Hidden or secret financial transactions or legal changes

What can be Done When Undue Influence is Suspected?

If undue influence is suspected, factors such as mental capacity and the predisposing factors listed above will be taken into account to determine if undue influence is probable. In probate law, a will contest can be filed to determine the validity of a will.

Avoiding Undue Influence

One of the best ways to avoid disputes is to share your estate plan with family members and openly discuss your wishes for your property and assets. If you have a loved one who does not have the mental capacity to make rational decisions, including estate planning decisions, consider whether instituting guardianship proceedings would be beneficial.

Exploitation of elders is a difficult and upsetting problem that can be devastating both emotionally and financially. Protect yourself or your loved one by preparing the correct planning documents and seeking the counsel of an elder law attorney. If you have not yet prepared your estate planning documents to help protect your assets and future care, contact Newman Elder Law for guidance.

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