Should I Be Worried About my Parent Part 2: Red flags for undue influence
Last month I talked about how many people lose their mental abilities as they get older. Another unfortunate truth is that older people are often targets for financial abuse. Some people will seek out older people, particularly those with severe mental impairments, and try to convince, coerce, or even seduce the elder into giving them their money. “Undue influence” is the term for when a person uses excessive persuasion to make an elder do what they want, regardless of the elder’s wishes or interests, causing an unjust outcome. An elder who lacks capacity is particularly vulnerable to undue influence.
As with lack of capacity, an elder who is being financially abused is rarely in a position to help him or herself. Here are some red flags that loved ones should watch out for:
- The elder has a weakened mental state and/or lacks capacity. Please see last month’s article for signs of lack of capacity. However, any mental condition that weakens a person’s ability to resist outside pressure puts them at a higher risk of undue influence (e.g. senility, loneliness, illness, grief, etc.)
- There is one person the elder is physically or emotionally dependent on. This by itself is not always a problem – sometimes there is a relative or friend who steps up when others around the elder can’t or won’t. However, when an elder is dependent on one person, that person can exert a lot of influence over them. This can be obvious (“I won’t take you to the doctor’s until you sign this”), or it can be more subtle (“Shouldn’t I get more for being here by your side every day?”).
- A person isolates the elder and limits their contact with others. Sometimes the elder legitimately doesn’t want to see people, or their physical state limits how many visits they can handle in a certain period. However, someone who acts as a gatekeeper has a lot of power over the elder, and they could use it to make sure no one realizes what is going on or can take steps to intervene.
- The elder is making significant changes to their will or trust. Generally speaking, a person with capacity can make whatever changes they want to their will or trust and choose whoever they wish as beneficiaries. However, when these changes are radically different from their previous documents, or their previously stated intentions, there may be something happening behind the scenes, especially if the changes benefit the person the elder is dependent on.
- Radical changes in the elder’s behavior and/or spending. If the elder is spending money in places they never shopped before, making large money transfers when they previously never transferred anything, or simply doing things that are very out of character, there’s a good chance that someone is pushing them into doing these things (or spending the money on themselves).
As with lack of capacity, one of these flags by itself may not be a cause for concern. However, when you see multiple flags, you should investigate to see if more is going on.
It’s important to remember that someone has not committed undue influence by simply being in a position to exert influence over the elder. They must use their position of influence to make their desired outcome happen. Courts want to see solid evidence that the accused person used their influence to force an unjust outcome, so be very sure of what is going on before you make an accusation or start a lawsuit.
If you have questions or are concerned about a loved one, please contact me at kaway@kawaylaw.com.
