Undue Influence Expert Analysis: Level of Impairment Interacts With Amount of Coercion
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When experts think about the undue influence of an older adult, there are many factors at play. All of the evidence needs to be taken into account before developing a final opinion about whether undue influence occurred in the case in question.
An undue influence expert will be quick to point out that there is always contradictory evidence. In every case, there will be some evidence that might suggest the older adult was susceptible to undue influence, and there is some evidence that might suggest the older adult was not susceptible to such influence. The same is true for evidence regarding the alleged influencer: some evidence might suggest that person exerted some level of coercion over the older adult, and vice versa.
It is in the analysis of this contradictory information where experts form their opinions.
This concept is not original to me. For the life of me, I cannot locate the original research where I found this coercion to impairment ratio. If this research is yours, or if you know whose it is, please contact me so that I can cite you and give you the credit you desrve!
As the level of coercion increases, the level of impairment needs to be lower in order for undue influence to be successful
The graph above shows the interaction between the level of impairment in the older adult and the amount of coercion from the alleged influencer. If the older adult is extremely impaired (e.g., has severe dementia, is in a delirious state, cannot communicate effectively, etc.), the level of coercion does not need to be very high for an influencer to be effective. For example, in a case where an older adult with severe dementia is hospitalized is in significant pain, and is experiencing delirium due to a urinary tract infection, an influencer may only need to put a new Will in front of the older adult and tell them to sign the form; the older adult will sign it having no idea what they just did, and all of the sudden the influencer gets all of vulnerable adult’s money. In this example, the older adult would show up on the upper left portion of the above graph (high impairment; low coercion).
Compare that scenario to one where an older adult who lives independently, has trusting family members around, has no brain impairment but sometimes struggles with memory issues like forgetting where a car is parked or forgetting to pay bills every now and then. If an influencer attempts to hand this older adult a new Will to sign, chances are, that low level of coercion will not be effective; an influencer will need to work much harder to successfully unduly influence the older adult. It may take months or years of isolation, indoctrination, exploitation, and grooming. In this case, the older adult would show up on the lower right portion of the above graph (low impairment; high coercion).
When attempting to prove or disprove undue influence of an older adult, this impairment/coercion ratio must be taken into account. An undue influence expert should be able to explain why even subtle attempts at coercion resulted in undue influence in some cases and why intense attempts may have failed in other cases.