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Undue influence: Is it elder abuse?

Undue influence is a common topic when discussing estate planning, elder law and other financial issues. However, what may not be clear is that undue influence, often defined as any persuasive act that overcomes an individual's free will, can also be considered a form of financial elder abuse.

As vulnerable members of the population, older people deserve to be protected against all forms of abuse, especially those as subversive as undue influence. Unfortunately, those guilty of undue influence are often trusted family members or friends - the exact people that should be protecting the older individuals. 

The perpetrator abuses his or her position of trust to obtain legal control over an older person's assets through legal authority (power of attorney, conservatorship, guardianship) or to gain "consent" to financial transactions where he or she will directly benefit. 

In order to determine if undue influence and financial elder abuse might be happening, the courts typically look for the following four elements:

  1. Is the older individual susceptible to overreaching influence? This can be demonstrated through mental, psychological or physical disability or a dependence on the other person.
  2. Was there opportunity for the perpetrator to use undue influence or other coercion? Usually this is obtained through a confidential relationship, such as husband and wife, parent and child, trustee and beneficiary, attorney and client, etc.
  3. Is there evidence that undue influence was used over a victim? This can be demonstrated through the perpetrator's efforts to aggressively move forward with financial transactions or discourage the elderly person from seeking outside advice.
  4. Is their record of a suspicious financial transaction? Examples can include a sudden change to a will or other testamentary document, especially after illness or incapacity, or an unexpected or unusually large financial gift given to an individual, organization or charity that directly benefits the new influencer.

If you notice any of these types of suspicious actions or behaviors, it is important to report the behavior to the appropriate legal authorities. In many cases, an experienced attorney can act as an advocate for you and your loved one for this matter.

Sources: National Committee for the Prevention of Elder Abuse, Mental Capacity, Consent and Undue Influence; National Center for State Courts, Prosecuting Elder Abuse Cases: Basic Tools and Strategies; The Free Dictionary by Farlex: Legal Dictionary, Undue Influence, last accessed May 26, 2015

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