Undue influence

Undue influence (UI) is a psychological process by which a person's free will is supplanted by that of another.[1][2] It is a legal term and the strict definition varies by jurisdiction.[3] Generally speaking, it is a means by which a person gains control over their victim's decision making through tactics and unfair pressure, typically for financial gain.[1] Undue influence is often perpetrated by a person who's trusted by the victim and is dependent on them for emotional and physical needs.[1][4] Anyone may be guilty of undue influence and is often a paid or unpaid caregiver, but may also be an attorney, accountant, nursing home attendant, neighbor or even the victims' children.[4][5][6] Undue influence is a process, not a single event, the influencer may spend weeks, months or even years "grooming" and manipulating their victim.[1] Anyone is susceptible to undue influence, however, the elderly are particularly vulnerable.[5]

A distinction is made between the nature of capacity and undue influence.[1] In assessing capacity, the practitioner evaluates an individual's ability to competently perform tasks (e.g., execute a will or give medical consent).[1] These assessments give insight to the functioning of the cognitive capabilities at that moment in time.[1] Screening for undue influence is focused on the process of events which occur over an extended period. In determining whether another person is leveraging unfair tactics on the victim, an assessment particular to undue influence is required.[1][6][7] Undue influence occurs in various circumstances including: domestic violence, hostage situations, cults, prisoners of war and dictatorships.[1][8] The common theme among these situations is the aspect of psychological manipulation.[1] Victims are unaware they're being manipulated and will often defend the perpetrator. Gaining independence from the influencer is required if the victim is to recover from the effects of UI, much like victim's of Stockholm syndrome, cults and kidnapping. [9]

Elderly Americans are living longer, and with this increased life expectancy, the prevalence of cognitive disorders associated with advanced age has also increased.[7][4][9] A significant concentration of wealth is controlled by this aging demographic.[4][10] As modern families become more complex and dispersed, and people are living longer, the likelihood of will contests involving undue influence is expected to increase.[5]

Some factors increase the likelihood that person is susceptible to being manipulated. Some of these factors include:

• Recent bereavement - The death of a family member such as a spouse or child.
• Age - Much like traditional scams, the elderly are especially susceptible to undue influence.
• Isolation - Family conflict, living alone, no living relatives or from physical factors such as distance or difficulties with communication.[11]
• Terminal diagnosis - Being diagnosed with a terminal illness such as cancer typically causes the victim to experience stress and trauma which increases the susceptibility of the victim.[11][12]
• Depression - The effects of depression are pernicious and contribute to a person becoming predisposed to undue influence.
• Dependency - When a victim is dependent upon the influencer for transportation, food, hydration, medicine etc.
• Diminished mental capacity - Mental function declines, particularly as we age. A person having difficulty thinking clearly may look to another to think things through for him.[13]
• Deviation from a previous will or stated intent. Some courts have viewed the existence of a prior will as a testator's susceptibility to undue influence.[14][15]
• Substance abuse - Illicit drugs, alcohol or prescribed medication.

A person seeking to exert undue influence on another person usually does so by leveraging their position of apparent authority.[1] Some of these tactics include:

• Isolating victims from their family and support system. Influencers often restrict access to their victim and maintain physical control, this means attending hospital and doctors appointments, supervising visits, refusing visitation and denying requests to speak to the victim. If the victim requires medical care or has an appointment the influencer is unable to attend, they will often change or cancel the appointment.
• Controlling their victims through sleep deprivation, overmedication, refusal to administer drugs such as naloxone etc. [16]
• Moving into the victim's home, spending their money or using their credit cards.
• Controlling the flow of information to manipulate the victim and their view of the world.[4] Limiting the free flow of information enables the influencer to distort the truth.[4] This allows the influencer to portray a false narrative to their victim which helps them facilitate their manipulation.[4] This often includes restricting access to the victims' phone, not answering phone calls or responding to texts, using the victims computer and not allowing people to visit. If visitation does occur, the influencer is often nearby and will attempt to govern the interaction.
• Emotional manipulation is often leveraged. Influencers tend to occupy a position to access their victim's medical records and other sensitive information. This helps them prey on their victim's emotions such as anxiety, depression, grief, fear, regret, humiliation, isolation and loneliness.[1]
• Relationship poisoning is a process by which a person instills thoughts and beliefs in their victim causing them to distrust third-parties. Statements such as - "Your children aren't even around", "I'm the only one that's here for you, nobody else cares" or, "your friends are only coming around because they want to take advantage of you" are examples of relationship poisoning. [9] These tactics are used to manipulate and isolate the victim while increasing their dependence on the perpetrator.[9][13]
• Encouraging dependency - victims often find themselves dependent on the influencer for transportation, food, hydration and medication. The influencer will often makes threats to the victim to increase dependency such as: "if I wasn't here, you'd be put into a nursing home". [9]
• Posturing as advocates and protectors of the victim in order to make onlookers less distrustful. An influencer will often act as though they are genuine advocates for the victim and maintain a superficial appearance of friendliness and care. However, when alone with the victim, they tend to neglect their personal care, such as personal hygiene, nutrition, hydration, medicine and other basic needs.
• Actively involving themselves in finances and financial instruments.[4] An influencer will often initiate changes in financial documents by making arrangements for attorney's to alter previous wills.[4] Perpetrators may attempt to become beneficiaries on brokerage and/or retirement accounts. Influencers tend to assist in securing certain documents such as competency letters and/or powers of attorney.[4]
• Encouraging the victim to make rushed decisions at inappropriate times, such as encouraging them to make changes to important documents at the hospital or after medical treatments.[17]

Lawsuits against estate planning attorneys have increased in recent years.[13] Due to changes in privity laws, many states allow third-parties to bring a lawsuit against an attorney who executed a will that is later deemed to be a product of undue influence.[13][18][19] Experienced estate attorney's tend to be vigilant of "red flags" indicative of undue influence during the drafting and execution of a will. [20] Because a will is the most important document most individuals sign in their lives, and it affects property rights for all time, the process should be taken seriously.[13][20] Many attorney's incorrectly assume that estate planning is a simple area of law.[20][18][19] Some lawyer's see it as an area of law that doesn't require much training and as a fast and easy way to make a quick buck, this could not be farther from the truth.[19][20] An attorney involved in estate planning and execution of wills, should exercise diligence and thoroughly document their work in the event they find themselves exposed to a malpractice suit.[19][20] Ignoring the testator's physical or mental condition can put the estate planning attorney in a precarious position of needing to explain why they changed a will while their client lacked capacity.[20]

Because of the secrecy and tactics leveraged by an influencer, direct evidence of wrongdoing is often impossible for the contestant of a will to produce. [21] Access to the individual is typically controlled by the influencer so that friends and family are unable to observe the perpetrator engaging in manipulation, thus a challenger is often unable to provide evidence. In an effort to address this substantial power distinction, many states allow for the burden of proof to be shifted to the alleged influencer.[21] The burden may be shifted if certain requirements are satisfied.[21] Jurisdictions vary as to the requirements, but in general, the burden is shifted when a combination of a confidential or fiduciary relationship with the donor and suspicious circumstances are found. [7][21] Such circumstances include:

• Old age and weakened physical or mental condition of the testator
• Lack of the consideration of the bequest
• Unnatural or unjust disposition of the property
• Participation of the beneficiary in procuring the gift
• Domination or control over the donor by the beneficiary
• Secrecy, concealment, or failure to disclose the gift[21][22]

Once shifted, the proponent of the contested will is tasked with rebutting the presumption. [21] The alleged influencer is required to prove that the testator made the will of their own volition, and was not under any influence at the time it was executed.

The California Undue Influence Tool (CUIST).

Elder Abuse: The Impact of Undue Influence