At its most basic level, financial abuse against the elderly is any type of theft or embezzlement of money or property from an elder. Among the most common ways elderly individuals are taken advantage of financially is undue influence concerning property and or wills.
Undue influence occurs when an individual takes advantage of another by using his or her position of power to exploit the trust, dependency and fear of another. The result is the victim losing his or her free will to make decisions for him or herself. Regarding how undue influence typically manifests itself, usually a situation is noticed wherein a person in a position of responsibility and trust misuses their position to benefit themselves to the detriment of the victim or the victim’s estate. The perpetrator could be a “friend” or acquaintance or a professional such as an accountant or nursing home staff member.
Elderly individuals are particularly vulnerable to undue influence. Those at highest risk are the recently widowed, geographically isolated and those who have suffered from significant mental capacity. While elderly white women who live alone are found to be the most likely victims of undue influence, this type of elder abuse can happen anywhere and to anyone including patients living in nursing homes.
Warning Signs of Undue Influence
While undue influence can be difficult to identify as every situation is different, there are a few “red flags” to be aware of. If there are noticeable, significant changes occurring in an elderly person’s spending habits, undue influence could be taking place. For example, if an individual who has been known to be very frugal starts to make extravagant purchases, someone may be taking advantage of that person financially. Another warning sign is when someone makes a sudden change to his or her will that comes at a complete surprise to those who know the individual well.
Often times, the perpetrator will find out who the victim associates with such as friends and family who visit, writes to or telephones the victim. The perpetrator will then attempt to start isolating the victim in order to keep him or her away from these friends, family and confidants. The perpetrator often does this by intercepting phone calls and mail or by preventing visits. Once the victim is isolated, the perpetrator manipulates the victim emotionally so that he or she does what the perpetrator desires.
Assembly Bill 140
In the fall of 2013, the California legislature passed AB 140. This law gives a new definition for California’s undue influence statute which has not been changed since it was enacted back in 1872. With the AB 140 modernization, there are now greater protections in place for elders and dependent adults because the new definition allows a court to consider:
- The vulnerability of the victim
- The influencer’s apparent authority
- The use of manipulative and unfair tactics
- Whether an inequitable economic consequence resulted
The definition of undue influence is now in step with today’s modern views of vulnerability, mental health and fairness. This new law will help California elder law attorneys set aside transactions and documents signed by someone who is acting in response to undue influence. It also will bring greater clarity to the determination of when excessive persuasion becomes exploitative.
A Growing Problem
Taking advantage of the elderly has become a serious problem in the United States. Nowadays, people are living well into their 80s and 90s due to improvements made to our healthcare system. The older members of our society are often dependent on others to manage their physical needs as well as their banking, investments and other financial affairs. Along with this dependency comes the risk that dishonest individuals will exploit the trust of the elderly for their own advantage. When this happens, the law states that if the individual has coerced the elderly person or unduly influenced them into handing over their property as a “gift”, the so-called gift is not valid.
The process of discovering and proving that an elderly person has been unduly influenced can prove very challenging. This is because in most cases, the influence is well concealed as it takes place behind closed doors, making it very difficult to uncover and rectify such behavior. And, to make matters even more difficult, it is usually left up to family members/heirs who’ve been negatively impacted by the undue influence to initiate legal action by hiring attorneys to prove that undue influence took place.
The key to preventing elders from giving in to undue influence lies with the hope that family members/confidants and knowledgeable lawyers are vigilant and attentive to the subtle warning signs when these issues arise. If you feel that your elderly loved one is a victim of undue influence, you should speak to a California elder abuse attorney. An experienced attorney will be able to make an objective assessment as to whether or not you can prove your case.