Undue Influence: Prevention, Protection, Prosecution
By Adria E. Navarro, PhD, LCSW, Assistant Professor of Clinical Family Medicine, USC
March 06, 2016
My years observing proceedings of an elder abuse forensic center opened my eyes to a process of abuse called undue influence. Cases involving undue influence are complicated and varied, with themes that seem unlimited. As a geriatric care manager, there were times to question if a client might have been manipulated, deceived, or even threatened when arriving at a particular decision. Perhaps the decision just didn’t seem to be in his or her best interest, or maybe it was kept a secret. For instance, one client shared with a smile and a wink, “…don’t tell my daughter, but I found someone to stay with me, they are moving in and will be able to help me at home”. More probing revealed this “new best friend” met my client in the grocery store parking lot and quickly became accommodating to her needs. Given this person’s intact decision-making capacity and my promise to keep our discussions confidential was there more I could or should have done? Looking back, this situation had several red flags that might have benefited from closer monitoring to assure prevention of undue influence.
In 2014 California legislation became effective to define undue influence (Probate Code §86, Welfare and Institutions Code §15410.70) for civil proceedings as, Undue influence means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered: 1) vulnerability of the victim, 2) influencer’s apparent authority, 3) actions or tactics used by the influencer, and 4) equity of the result.
These four domains are valuable for recognizing undue influence, as well as in relating circumstances effectively to those that respond to allegations.
Vulnerability: Evidence may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.
Apparent authority: Evidence may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.
Actions or tactics used: Evidence may include, but is not limited to all of the following: controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep. As well as, use of affection, intimidation, or coercion. It might be observed through the initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.
Equity of the result: Evidence may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the appropriateness of the change, in light of the length and nature of the relationship.
The law reminds us that evidence of an inequitable result alone is not sufficient to prove undue influence, as these actions may legally be defined simply as fraud or theft. Also, the four domains are not all required by law when indicating undue influence has occurred. Being person-centered is a critical component to investigating the motives and desires in these cases. Some victims may be cognitively intact for instance, yet unduly influenced by capitalizing on other vulnerabilities such as their isolation or health conditions.
With this understanding, what can we do? Once you have suspicions a vulnerable adult is being abused using any process—including undue influence—our role is to take action by reaching out to protective services for our jurisdiction. Some will contact Adult Protective Services, and others will seek law enforcement or Ombudsman support immediately. Investigations may draw upon medical records, financial accounting, and sensitive interviews with those involved to determine appropriate steps towards prevention, protection, and prosecution. For resources and support to initiate action contact the National Center on Elder Abuse www.ncea.aoa.gov and join with Ageless Alliance http://agelessalliance.org/, because together we are the solution to elder abuse.