The State of California has taken great efforts to incorporate scientific knowledge into statutory schemes that delineate a number of non-exclusive factors to consider when determining whether undue influence has been used against elders. In simpler language, have trusted influencers used their position to perpetrate elder abuse?
California's legislative efforts culminated in January 2014 with the effective application of new Probate and Welfare and Institutions Code sections.
Under California Welfare and Institutions Code Section 15610.70(a), undue influence is defined as "excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity." Along with that, the following factors are taken into consideration:
"1) The vulnerability of the victim. Evidence of vulnerability 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.
2) The influencer's apparent authority. Evidence of apparent
authority 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.
3) The actions or tactics used by the influencer. Evidence of
actions or tactics used may include, but is not limited to, all of
a. Controlling necessaries of life, medication, the victim's
interactions with others, access to information, or sleep.
b. Use of affection, intimidation, or coercion.
c. 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
d. The equity of the result. Evidence of the equity of the result
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
value of any services or consideration received, or the
appropriateness of the change in light of the length and nature of
e. Evidence of an inequitable result, without more, is not
sufficient to prove undue influence."
While stories of undue influence are as varied as all life stories, there are some that most epitomize the wrongdoing visited upon vulnerable elders. California's new statutes provide ample ammunition for dealing with some of the egregious conduct described further below.
Elder Financial Abuse
Undue influence has a goal: gaining control of an elder's property, funds, or other assets. This practice is both unlawful and unethical, and it's a primary method of elder financial abuse. Section 15610.30 of the Welfare and Institutions Code, updated in January 2014, now states that elder financial abuse occurs when a person:
"1) Takes, secretes, appropriates, obtains, or retains real or
personal property of an elder or dependent adult for a wrongful use
or with intent to defraud, or both.
2) Assists in taking, secreting, appropriating, obtaining, or
retaining real or personal property of an elder or dependent adult
for a wrongful use or with intent to defraud, or both.
3) Takes, secretes, appropriates, obtains, or retains, or assists
in taking, secreting, appropriating, obtaining, or retaining, real
or personal property of an elder or dependent adult by undue
influence, as defined in Section 15610.70."
As such, there are no more excuses for either elder financial abuse or undue influence. Thanks to amendments in the California State Code, wrongdoers have nowhere to hide anymore. But it's not for lack of trying, and one of the most insidious forms of undue influence is perpetrated in deathbed transfers.
Deathbed Gifts, Wills, Trusts and Deeds
Deathbed transfers may be an elder's beautiful gesture of love and care. And, who can argue with this? At our life's end we want to be able to say as St. Paul did that "I have fought the good fight, I have finished the race, I have kept the faith." Sometimes deathbed transfers are an important part of finishing the race.
There are other deathbed transfers spawned not by the love and care of the giver but rather generated by the avarice and greed of the taker. The taker has a different kind of race in mind - the race to take everything he or she can from the dying person and to keep it from the natural objects of the elder's bounty. It is these later deathbed transfers that often shake families and foment distrust, dissension and ultimately stoke the fires of litigation.
Few would argue that a dying person is not vulnerable. A dying person's vulnerability is likely marked by "incapacity, illness, disability, injury, age, impaired cognitive function, emotional distress, isolation or dependency." An early inquiry is whether "the influencer knew or should have known of the alleged victim's vulnerability." So a deathbed gift is first analyzed within the context of the decedent's overall mental, emotional and physical circumstances. Once such conditions are understood the next consideration is whether the influencer knew or should have known of the victim's vulnerability.
It is not uncommon that a person dying is heavily medicated and alternating between consciousness and unconsciousness. A person need not be heavily medicated to be vulnerable to deathbed undue influence. The emotional distress, isolation and all attendant emotions and concerns of the dying both open the door to the greatest graces and love available in our lives and also the vulnerability to manipulation by the unscrupulous.
All influencers have some type of apparent authority. Evidence of this authority may include "status as a fiduciary, family member, care provider, healthcare professional, legal professional, spiritual advisor, expert, or other qualification." We have seen deathbed undue influence cases involving the coercion of an elder by a spouse, former spouse, caretaker, stepmother, child, niece, nephew, brother, sister and grandchild - not all at once or in the same case - still the net of potential undue influencers spreads wide. It's the abuse of authority that makes for undue influence.
Undue influence scenarios seem to take easier hold in families where the elder is isolated from other family members by geography or the intervention of the influencer. Such isolation can be used as a tool against the elder that no one loves him/her except the relative/caretaker that is geographically or physically near. The elder might have little knowledge that his or her loved ones have been making continued but frustrated efforts to communicate with the elder. If we remember one thing it is that preexisting frayed family relationships are the seeds of estate disputes used by the influencer. In the same way, preexisting family strains can be manipulated to the benefit of the influencer.
Controlling "medication, the victim's interactions with others, access to information, or sleep" are tools of the undue influencer. Affection, intimidation or coercion are additional tools of undue influence. The undue influencer's actions to have the victim make changes in personal or property rights are often cloaked in secrecy and initiated in haste. Such secrecy is occasioned by warnings of dire results to the elder if the secrecy is breached. Such warnings often focus on the threat that the elder is going to be put in a home and isolated from everyone that he or she holds dear.
When actions made by undue influencers are challenged, the scope of the influenced personal property and real property transfers must be fully assessed. Discoveries of wrongdoing are often delayed. Real property gifts evidenced by recorded transfers may be accessed by public record searches. Bank transfers and cash transfers are more difficult. Gifts, grant deeds of real property, assignments of bank and security accounts, as well as changes in the terms of durable powers of attorney, medical and health care powers of attorney, wills and revocable and irrevocable trusts are part and parcel of many undue influence cases.
Informal discovery in undue influence cases can be quite difficult. Good faith inquiries into transfers often feed the paranoia of an impaired elder. The impaired elder, already influenced by the wrongdoer, fears that such inquiries will be used to take all that the elder has and put him or her in an "old people's home." Getting over an elder's fears and convincing him or her that such inquiries are focused on the elder's wellbeing is often a high hurdle.
When undue influence cases are in formal discovery the "equity of the result" will be one part of the discovery focus. Deathbed dispositions to caretakers after a long and consistent estate plan benefitting children will be inequitable. The same is true as to preference of one child or grandchild over another when long-term estate plans favored equity between children or grandchildren. Equitable considerations include "the economic consequences to the victim, any divergence from the victim's prior intent or course of conduct or dealing ... or the appropriateness of the change in light of the length and nature of the relationship."
Deathbed transfers commonly diverge from the elder's prior intent or years of course of conduct. We have seen several cases where decades of estate planning equally benefitting an elder's siblings, children or grandchildren are derailed shortly before death - derailed to benefit one sibling, child or grandchild over all the others. Fodder for disagreement easily arises in estate disputes between stepparents and stepchildren.
We have also seen several deathbed transfer cases where the elder is literally speechless - seemingly approving his new estate plan by eye contact or thumbs up or thumbs down. This is an invitation to mayhem. The influencer tells the "deathbed" lawyer that the elder wants this or that - just write it up and when you visit with the elder you will see that this is what he wants. Yes, this really happens. When it happens family members are baffled as to what to do. For one thing, step back and put this in perspective. Go back to the two-part test of elder abuse.
A dying person's mental, emotional and physical state is likely marked by "incapacity, illness, disability, injury, age, impaired cognitive function, emotional distress, isolation or dependency."
Should the influencer known of this vulnerability? In most cases the better question might well be "how could the influencer not have known of this vulnerability?" That said the statutory inquiry is whether "the influencer knew or should have known of the alleged victim's vulnerability."
I can think of several deathbed cases where the elder was incapacitated - unable to speak. The illness might have been a stroke, heart disease, vital organ shutdown, or a Stage IV Cancer (brain, lung, bone or some other life ending illness). Could this be considered a disability? Yes. Is this an injury? Yes. What is the age factor? An elder. Was this impaired cognitive function? It doesn't take a professor from Stanford Medical school to say yes. Is there emotional distress? Yes. Is there isolation? Yes. Dependency? Yes. Well, it sure looks like undue influence.
What have we learned from all of this? The simple truth is that people are free to give what they have to whom they want. An armed robber is not the beneficiary of this freedom. An armed robber takes by force. A burglar may not be taking by force, but his taking is surely wrongful. In undue influence cases freedom is more nuanced. The ultimate question is whether a wrongdoer took advantage of an elder's vulnerability.
We litigate undue influence cases. We're not about to overlook the obvious. Vulnerability coupled with the influencer's knowledge of such vulnerability are primary issues. We don't give much credence to "I was only trying to help" - "I was only doing what Uncle Louie asked me to do" - "This is what he wanted" - "His kids only wanted money."
Undue influence cases are litigation battlefields of emotion, disputed testimony, greed and often outrage. It helps to have covered this ground before. That said, there is always new territory when creativity is used for ill rather than good. Undue influencers are inventive in their wrongdoing and active in their secrecy. Vigilance is helpful in stopping financial elder abuse, and quick, focused legal action is the best answer to undue influence.