UNDUE INFLUENCE AND EXPLOITATION

Photo of older man wearing a knit cap outside in the snow

photo by Ravi Patel

 
 

Undue influence can cause an otherwise competent adult to change a will to benefit the influencer…

Undue influence refers to the idea that a person uses their power and authority to take advantage of a susceptible individual. Typically, the susceptible individual suffers emotionally, financially, and physically from the undue influence. Common signs of undue influence are financial losses, loss of freedom, isolation from loved ones, extreme physical distress, fear, shame, and depression.

Undue influence is sometimes difficult to prove because, by nature, it is often done in secret. However, there are hallmarks of susceptibility to undue influence, characteristics of undue influencers, and markers for improper outcomes that I evaluate in order to form opinions on this matter.

There are multiple theories regarding what it takes for an individual to unduly influence another individual. However, In order to form an expert opinion on whether or not an individual was subject to undue influence, I typically use the California Undue Influence Screening Tool (CUIST)[1] retrospectively.

The CUIST was initially developed as a tool for Adult Protective Services workers in California to determine if further investigation would need to be taken or if law enforcement would need to get involved due to the high potential for financial exploitation or undue influence of the elderly adult in question. It is based on Mary Joy Quinn’s previous work in the area of undue influence,[2] where she evaluated previous models of undue influence and found four common features:

1. The elderly individual’s vulnerability/susceptibility to undue influence;

2. The authority or position of power a potential influencer has over the elderly individual 

3. The actions taken or tactics used by a potential influencer to gain control over the elderly individual; and

4. Any unfair or improper outcomes to the elderly individual’s emotional, physical, or financial health as a result of the potential influencer’s actions or tactics.

In addition to the Quinn model of undue influence and the CUIST, I also use jurisdiction-specific case law, statutory law, and pattern civil jury instructions to inform my expert opinions in this matter.

Person wearing coat and backpack walking the snow on urban street as seen from behind

Some important caveats regarding undue influence:

  1. Typically, undue influence refers to words and/or actions that deprive the person of free choice and that cause the person to act differently with regard to healthcare, property, or assets that is different from what they otherwise would have.

  2. Undue influence cannot be inferred solely from motive or opportunity. A child may have a motive to get the parent to write the other children out of the will. That same child may be the caretaker for the parent and have ample opportunity to unduly influence the parent. Although those are important factors in any undue influence evaluation, taken on their own they cannot be used to say definitively that the child unduly influenced the parent.

  3. Usually, any influence that is gained through love, affection, or kindness is not undue influence. If someone is nice to an elderly individual and visits twice a week for years, it is not necessarily undue influence if the elderly individual leaves that person some money in an estate plan.

  4. Just because you think a particular aspect of an estate plan is unfair or improper (e.g. the father writes two of the three children out of the will because he hates them), that does not necessarily mean the decision was the product of undue influence.

  5. Typically, an undue influencer needs to have a confidential relationship with the older adult. In this case, confidential refers to a close relationship where the older adult has confidence in the person, trusts the person, and confides in the person, leading to a power imbalance in the relationship. People with confidential relationships with the older adult can be family members, paid caretakers, neighbors/friends, and paid professionals such as accountants or attorneys.

  6. Along those same lines, undue influencers often (but not always) have fiduciary relationships with the older adult, meaning they have a duty to act in the best interest of the older adult, especially with regard to money and other assets such as investments and houses. Individuals with fiduciary relationships with the older adult can be attorneys, accountants, investment advisors, and children who act as agents under power of attorney for financial or medical decisions.

In some cases, it is not possible to form an expert opinion regarding whether or not undue influence actually occurred. However, there are strong indicators from research that help guide my opinion on whether or not the adult in question was susceptible to undue influence. Those factors, from Quinn (2017), are as follows:

  1. Poor or declining health or physical disability;

  2. Depends on others for help or care;

  3. Problems with hearing, vision, or speaking;

  4. Problems with memory;

  5. Problems communicating and understanding;

  6. Does not understand the consequences of decisions;

  7. Developmental disability;

  8. Dependent or passive behavior;

  9. Emotional distress (such as grief, anxiety, fear, or depression);

  10. Language/literacy barriers;

  11. Isolated from others;

  12. Lives in chaotic or dysfunctional environment; and

  13. Influencer knew or should have known of the person’s vulnerability.

From Quinn (2010), if you are seeing any of the following, it could be indicative of undue influence (the more criteria that are met, the more concerning it is):

  1. The influencer manipulates or controls the adult’s access to food, sleep, medication, or personal care;

  2. The influencer makes promises to make the adult rich;

  3. The influencer makes false promises or claims (such as pretending to be a financial expert);

  4. The influencer is a professional or a paid caretaker who involves the adult in their personal life or asks for gifts/loans;

  5. The influencer controls access to information;

  6. The influencer isolates the adult from visitors, computer/telephone, or mail;

  7. The influencer instrills distrust or fear in the adult;

  8. The influencer moves into the adult’s residence or changes the adult’s residence;

  9. The influencer changes the adult’s usual providers (such as doctors, attorneys, or bankers);

  10. The influencer makes frequent/repeated requests of the adult that benefit the influencer;

  11. The influencer pressures the adult during periods of distress, illness, or transition;

  12. The influencer uses affection, sex, intimidation, or coercion with the adult;

  13. The influencer rushes the adult to make decisions secretly and at inappropriate times and places; or

  14. The influencer solicits or encourages gifts, loans, bequests, or cash from the adult.

It is important to point out that any one of the above 14 criteria can be occurring and it does not necessarily mean a person is unduly influencing the older adult in question. And, there is no scientific validity in saying that, when a certain number of the criteria are met, undue influence is definite. Each case is unique: in some instances three or four of the above criteria could be met and there is no undue influence. In other instances, only one criterion is met, but undue influence is obvious.


[1] Quinn, M. J., Nerenberg, L., Navarro, A. E., & Wilber, K. H. (2017). Developing an Undue Influence Screening Tool for Adult Protective Services. Journal of Elder Abuse & Neglect, 29(2-3).

[2] Quinn, M. J. (2010). Undue Influence: Definitions and Applications. A Project Supported by the Borchard Foundation Center on Law and Aging.