It is important to remember, what every elder law attorney knows, that elder abuse is not limited to physical abuse or neglect. Another common type of elder abuse is financial in nature. Unfortunately, the elderly are often more susceptible to abuse because of diminished capacity. One of the most frequent causes of financial elder abuse is the use of undue influence. An elder law attorney knows how to recognize the signs of this and other types of elder abuse.
Why elder financial abuse often goes unreported
Regrettably, quite a few financial abuse cases involving seniors go unnoticed or unreported because most victims of financial abuse are ashamed that they fell victim to it. Others may be suffering from such diminished mental capacity that they actually don’t realize they have been taken advantage of. Another contributing factor is the fear that many seniors feel that, if they acknowledge being taken advantage of by someone, their families will want to put them in a nursing home.
Financial abuse often comes at the hands of relatives
The unfortunate reality is that the elderly are exploited by their own relatives or caregivers. These individuals are closest to the elderly and have the easiest access. Considering that reports indicate as many as a third of all elder financial abuse cases are committed by family members, it is more likely that more cases go unreported because seniors are understandably reluctant to report their relatives.
Using undue influence is against the law
As any experienced and qualified elder law attorney will tell you, the most common underlying element of financial elder abuse is undue influence. Whenever a relative, caregiver, friend or even stranger obtains money, property, real estate or other assets from a senior through fraud or coercion, it is unlawful and can lead to both civil and criminal charges.
What does California law say about using undue influence?
Under California’s Welfare and Institutions Code, the term “undue influence” is defined as excessive persuasion that causes an individual to act or not to act by overcoming that individual’s free will, resulting in inequity.” The reality is, this is a significant burden for a Sacramento elder law attorney to meet. Attorneys must establish several elements to the satisfaction of the court.
Factors considered by the court win determining unlawful undue influence
One important factor that must be proven is the vulnerability of the victim. Both physical and emotional vulnerability can be established by the following:
- impaired cognitive function
- illness or incapacity
- education level
- level of isolation and dependency
- emotional distress.
Once some form of vulnerability is established, it must be shown that the accused either knew or should have known of that vulnerability. The accused must also have some form of apparent authority over the victim, such as a being a relative, health care provider, legal professional, fiduciary or religious or spiritual advisor.
Were the actions taken evidence of undue influence?
Another important element of establishing this type of elder abuse is the specific actions taken by the alleged perpetrator. It may be shown that the alleged perpetrator controlled the needs of the victim, such as their medication or access to others, or if the perpetrator used intimidation or coercion. There may be evidence of changes being made to the victim’s property ownership, especially changes that are made in haste or demonstrating secrecy.
Undue influence does not require mental incapacity of the victim
A common misconception is that in order to establish unlawful coercion or undue influence, it must be shown that the victim was incapacitated in some way. The truth is, it is not necessary to establish any sort of mental or cognitive disability in order to establish undue influence. It is certainly true that someone with dementia and suffering from memory problems is at a much greater risk for financial abuse. However, a senior could still have complete memory and mental functions but still be taken advantage of simply by way of persuasion or coercion.
How can you prove undue influence?
As with any other case, there are various ways of proving undue influence. An elder abuse attorney is experienced and will know which elements are necessary. Those elements can include the victim’s testimony, the testimony of the victim’s family member and close friends, testimony from health care providers and mental health experts, and documents that can prove the transfer of the victim’s money and/or property.
If you have questions regarding undue influence or any other elder law issues, contact the Northern California Center for Estate Planning and Elder Law, either online or by calling us at (916) 437-3500. If we cannot assist you, we can refer you to qualified attorneys who can.
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