Undue influence

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Undue influence (UI) is a psychological process by which a person's free will and judgement is supplanted by that of another. [1] [2] It is a legal term and the strict definition varies by jurisdiction. [3] [4] Generally speaking, it is a means by which a person gains control over their victims' decision making through manipulation tactics and unfair pressure, typically for financial gain. [1] [4] Historically, UI has been poorly understood, even in some legal circles. [5]

Contents

Undue influence is typically perpetrated by a person who is trusted by the victim and is dependent on them for emotional and physical needs. [1] [6] [4] Caregivers are often found to have unduly influenced their patients, however, anyone in a position of trust and authority over the victim (e.g. fiduciary) may be guilty. This includes the victims' attorney, accountant, nursing home attendant, or even children. [4] [6] [7] [8] UI is a process, not a single event. A manipulator may spend weeks, months, or even years before successfully unduly-influencing their victim. [1] Anyone is susceptible to UI, but the elderly are particularly vulnerable. [7] [5] [4] Perpetrators of UI operate in shadow, enacting their manipulation behind closed doors where there are no witnesses. [5] A person being unduly influenced may become withdrawn, depressive and passive. Physical signs of abuse may include unexplained bruising, scratches, and/or broken bones. Other signs may include missing or broken dentures, prescription eyeglasses, hearing aids or other assistive devices.

A distinction is made between the nature of capacity and undue influence. [1] [5] [4] In assessing capacity, the practitioner evaluates an individual's ability to competently perform tasks (e.g., execute a will or give medical consent). [1] These assessments give insight to the functioning of the cognitive capabilities at that moment in time. [1] Conversely, screening for undue influence is focused on the processof events which occur over an extended period. To determine whether another person is leveraging unfair tactics on the victim, an assessment specific to undue influence is required. [1] [8] [4]

Undue influence occurs in various circumstances including, but not limited to domestic violence, hostage situations, cults, prisoners of war, and dictatorships. [1] [9] [5] [4] The common theme among these situations is the aspect of psychological manipulation. [1] Traumatic bonding may occur between the victim and influencer, as a result, the victim may even defend the perpetrator. The effectiveness of cult tactics (e.g. love bombing) on young and healthy individuals illustrates that anyone, regardless of mental status, is a potential victim of UI under certain circumstances. [4]

Elderly Americans are living longer, and with this increased life expectancy, the prevalence of cognitive disorders associated with advanced age has also increased. [4] [6] [5] A significant concentration of wealth is controlled by this aging demographic making them a potential target for exploitation. [6] [10] Modern families are becoming more complex and dispersed. Given these factors, the number of will contests involving undue influence is expected to increase. [7] [5] [4]

Susceptibility

Some factors have been identified that increase the likelihood of a person being susceptible to manipulation. Some of these factors include, but are not limited to:

Tactics

A person seeking to exert undue influence on another person usually does so by leveraging their position of apparent authority. [1] Some of these tactics include:

Lawsuits against estate planning attorneys have increased in recent years. [13] Legal malpractice in trusts and estates is now considered to have the highest risk of exposure, representing 12% of all legal malpractice claims. [17] [18] Due to changes in privity laws, many states allow third-party beneficiaries to bring a lawsuit against an attorney who executed a will that is later deemed to be a product of undue influence. [13] [18] [19] Experienced estate attorneys tend to be vigilant of "red flags" indicative of undue influence during the drafting and execution of a will. [20] Because a will is the most important document most individuals sign in their lives, and it affects property rights for all time, the process should be taken seriously. [13] [20] Many attorneys incorrectly assume that estate planning is a simple area of law. [20] [18] [19] Some less-informed attorneys believe estate planning to be a simple, fast, and easy way to make a quick buck, this could not be farther from the truth. [19] [20] An attorney involved in estate planning should exercise diligence and thoroughly document their work in the event they find themselves exposed to a malpractice suit. [19] [20] Ignoring indications of UI by the estate planning attorney can put them in a precarious position of needing to explain why they redirected a testator's estate while their client was unduly influenced. [20]

Presumption

Because of the secrecy and tactics leveraged by an influencer, direct evidence of wrongdoing is often impossible for the contestant of a will to produce. [21] Access to the individual is typically controlled by the influencer so that friends and family are unable to observe the perpetrator engaging in manipulation, thus a challenger is often unable to provide direct evidence. In an effort to address this substantial power distinction, many states allow for the burden of proof to be shifted to the alleged influencer if certain requirements are satisfied. [4] [21] Jurisdictions vary as to the requirements, but in general, the burden is shifted when the combination of a confidential or fiduciary relationship with the donor and suspicious circumstances are found. [4] [21] Such circumstances include:

Once shifted, the proponent of the contested will is tasked with rebutting the presumption. [4] [21] The alleged influencer is required to prove that the testator made the will of their own volition, and was not under any influence at the time it was executed. [4]

History

Undue influence originated from English common-law in a doctrine from 1617. Chancellor Bacon found that a woman who "worked on the simplicity and weakness" of an elderly man was guilty of undue influence. [4]

Research

The California Undue Influence Screening Tool

A focus group and a panel of experts were tasked to undertake a study to develop a tool to assist Adult Protective Services, legal professionals, and health practitioners in identifying potential instances of UI. The experts included: (1) a licensed psychologist who specializes in forensic neuropsychology; (2) an expert in the criminal prosecution of elder abuse; (3) a probate attorney with extensive experience with conservatorships, estate planning, and undue influence; and (4) a professor of gerontology with expertise in elder abuse. [1] The resulting product is referred to as the California Undue Influence Screening Tool (CUIST). [1] The tool can be used to help identify instances of UI in all fifty states. [5] [23] The study revealed similarities in persons who were particularly susceptible to unduly influence such as:

Undue influence has been studied in the field of social psychology. The American Bar Association Commission on Law and Aging and the American Psychological Association have analyzed similarities between cult members and domestic violence. These accounts share an element of power distinction between the alleged influencer and the vulnerable adult. [5] [7]

Clinical models of undue influence

Clinical models have been developed in an effort to assist clinicians and practitioners in determining if UI is present and to build a legal case. Some of the most prevalent models are discussed below.

The IDEAL model

The IDEAL model was developed by the psychiatrist Bennet Blum, M.D., it emphasized the social conditions frequently observed in cases of alleged undue influence. [7] It focuses on five aspects:

  • Isolation from friends and family
  • dependency on the perpetrator
  • emotional manipulation of the victim
  • the acquiescence of the victim as a result of the three previous factors
  • the financial loss of the victim [1] [7]

The SCAM model

The SCAM model was developed by Susan I. Bernantz, Ph.D., it contains four elements regarding undue influence:

  • Susceptibility of the victim
  • Presence of a confidential and trusting relationship between the victim and perpetrator
  • initiation (active procurement) of financial transactions by the perpetrator
  • monetary loss of the victim [1] [7]

The IPA analysis framework

The IPA analysis framework is the result of a task force formed by The International Psychogeriatrics Association called Testamentary Capacity and Undue Influence. It consists of reviews on international law and common legal definitions of undue influence. [7] The authors noted risk factors which include:

Environmental risk factors

  • social isolation
  • family conflict
  • dependency, especially if a change in circumstances occurred

Psychological risk factors

  • physical disability
  • substance use
  • cognitive impairment
  • mental illness [1] [7]

New Zealand

Case law

See also

Related Research Articles

Coercion involves compelling a party to act in an involuntary manner by the use of threats, including threats to use force against that party. It involves a set of forceful actions which violate the free will of an individual in order to induce a desired response. These actions may include extortion, blackmail, or even torture and sexual assault.

Abuse is the improper usage or treatment of a thing, often to unfairly or improperly gain benefit. Abuse can come in many forms, such as: physical or verbal maltreatment, injury, assault, violation, rape, unjust practices, crimes, or other types of aggression. To these descriptions, one can also add the Kantian notion of the wrongness of using another human being as means to an end rather than as ends in themselves. Some sources describe abuse as "socially constructed", which means there may be more or less recognition of the suffering of a victim at different times and societies.

Elder abuse is "a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person." This definition has been adopted by the World Health Organization (WHO) from a definition put forward by Hourglass in the UK. Laws protecting the elderly from abuse are similar to and related to laws protecting dependent adults from abuse.

Psychological abuse, often called emotional abuse, is a form of abuse characterized by a person subjecting or exposing another person to a behavior that may result in psychological trauma, including anxiety, chronic depression, or post-traumatic stress disorder.

A legal guardian is a person who has been appointed by a court or otherwise has the legal authority to make decisions relevant to the personal and property interests of another person who is deemed incompetent, called a ward. For example, a legal guardian might be granted the authority to make decisions regarding a ward's housing or medical care or manage the ward's finances. Guardianship is most appropriate when an alleged ward is functionally incapacitated, meaning they have a lagging skill critical to performing certain tasks, such as making important life decisions. Guardianship intends to serve as a safeguard to protect the ward.

<span class="mw-page-title-main">Will contest</span>

A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator or that the will is otherwise invalid. Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud. A will may be challenged in its entirety or in part.

Workplace bullying is a persistent pattern of mistreatment from others in the workplace that causes either physical or emotional harm. It can include such tactics as verbal, nonverbal, psychological, and physical abuse, as well as humiliation. This type of workplace aggression is particularly difficult because, unlike the typical school bully, workplace bullies often operate within the established rules and policies of their organization and their society. In the majority of cases, bullying in the workplace is reported as having been done by someone who has authority over the victim. However, bullies can also be peers, and subordinates. When subordinates participate in bullying this phenomenon is known as upwards bullying .The least visible segment of workplace bullying involves upwards bullying where bully- ing tactics are manipulated and applied against “the boss,” usually for strategically designed outcomes.

<span class="mw-page-title-main">Domestic violence</span> Abuse of members of the same household

Domestic violence is violence or other abuse that occurs in a domestic setting, such as in a marriage or cohabitation. Domestic violence is often used as a synonym for intimate partner violence, which is committed by one of the people in an intimate relationship against the other person, and can take place in relationships or between former spouses or partners. In its broadest sense, domestic violence also involves violence against children, parents, or the elderly. It can assume multiple forms, including physical, verbal, emotional, economic, religious, reproductive, financial abuse, or sexual abuse. It can range from subtle, coercive forms to marital rape and other violent physical abuse, such as choking, beating, female genital mutilation, and acid throwing that may result in disfigurement or death, and includes the use of technology to harass, control, monitor, stalk or hack. Domestic murder includes stoning, bride burning, honor killing, and dowry death, which sometimes involves non-cohabitating family members. In 2015, the United Kingdom's Home Office widened the definition of domestic violence to include coercive control.

Cyberstalking is the use of the Internet or other electronic means to stalk or harass an individual, group, or organization. It may include false accusations, defamation, slander and libel. It may also include monitoring, identity theft, threats, vandalism, solicitation for sex, doxing, or blackmail.

In psychology, manipulation is defined as subterfuge designed to influence or control another, usually in a manner which facilitates one's personal aims. The methods used distort or orient the interlocutor's perception of reality, in particular through seduction, suggestion, persuasion and non-voluntary or consensual submission. Definitions for the term vary in which behavior is specifically included, influenced by both culture and whether referring to the general population or used in clinical contexts. Manipulation is generally considered a dishonest form of social influence as it is used at the expense of others.

Disability abuse is when a person with a disability is abused physically, financially, sexually and/or psychologically due to the person having a disability. This type of abuse has also been considered a hate crime. The abuse is not limited to those who are visibly disabled or physically deformed, but also includes those with learning, intellectual and developmental disabilities or mental illnesses.

Institutional abuse is the maltreatment of a person from a system of power. This can range from acts similar to home-based child abuse, such as neglect, physical and sexual abuse, and hunger, to the effects of assistance programs working below acceptable service standards, or relying on harsh or unfair ways to modify behavior. Institutional abuse occurs within emergency care facilities such as foster homes, group homes, kinship care homes, and pre-adoptive homes. Children who are placed in this type of out of home care are typically in the custody of the state. The maltreatment is usually caused by an employee of the facility.

Trauma bonds are emotional bonds that arise from a cyclical pattern of abuse. A trauma bond occurs in an abusive relationship wherein the victim forms an emotional bond with the perpetrator. The concept was developed by psychologists Donald Dutton and Susan Painter.

Economic abuse is a form of abuse when one intimate partner has control over the other partner's access to economic resources, which diminishes the victim's capacity to support themselves and forces them to depend on the perpetrator financially.

The following outline is provided as an overview of and topical guide to domestic violence:

Abusive power and control is behavior used by an abusive person to gain and/or maintain control over another person. Abusers are commonly motivated by devaluation, personal gain, personal gratification, psychological projection, or the enjoyment of exercising power and control. The victims of this behavior are often subject to psychological, physical, mental, sexual, or financial abuse.

Marital rape is illegal in all 50 US states, though the details of the offence vary by state.

Domestic violence within lesbian relationships is the pattern of violent and coercive behavior in a female same-sex relationship wherein a lesbian or other non-heterosexual woman seeks to control the thoughts, beliefs, or conduct of her female intimate partner. In the case of multiple forms of domestic partner abuse, it is also referred to as lesbian battering.

Elder financial abuse is a type of elder abuse in which misappropriation of financial resources or abusive use of financial control, in the context of a relationship where there is an expectation of trust, causes harm to an older person.

Isolation is often used to facilitate power and control over someone for an abusive purpose. This applies in many contexts such as workplace bullying, elder abuse, domestic abuse, child abuse, and cults.

References

Citations

  1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Quinn, Mary Joy; Nerenberg, Lisa; Navarro, Adria E.; Wilber, Kathleen H. (2017-04-11). "Developing an undue influence screening tool for Adult Protective Services". Journal of Elder Abuse & Neglect. 29 (2–3): 157–185. doi:10.1080/08946566.2017.1314844. ISSN   0894-6566. PMID   28398137. S2CID   46487332.
  2. "Undue Influence". California Elder Justice Coalition (CEJC). Retrieved 2021-12-12.
  3. Taylor, Gabriel (2021-03-27). "What Is The Legal Definition Of "Undue Influence?"". Oxford Legal. Retrieved 2021-12-09.
  4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Plotkin, Daniel A.; Spar, James E.; Horwitz, Howard L. (2016-09-01). "Assessing Undue Influence". Journal of the American Academy of Psychiatry and the Law Online. 44 (3): 344–351. ISSN   1093-6793. PMID   27644868.
  5. 1 2 3 4 5 6 7 8 9 10 11 12 13 "Defining Undue Influence". www.americanbar.org. Retrieved 2021-12-20.
  6. 1 2 3 4 5 6 7 8 9 10 11 12 Peisah, C.; Finkel, S.; Shulman, K.; Melding, P.; Luxenberg, J.; Heinik, J.; Jacoby, R.; Reisberg, B.; Stoppe, G.; Barker, A.; Firmino, H. (February 2009). "The wills of older people: risk factors for undue influence". International Psychogeriatrics. 21 (1): 7–15. doi:10.1017/S1041610208008120. ISSN   1041-6102. PMID   19040788. S2CID   22488750.
  7. 1 2 3 4 5 6 7 8 9 Liu, Pi-Ju; Wood, Stacey; Hanoch, Yaniv (2015), "Choice and Aging", Aging and Decision Making, Elsevier, pp. 309–327, doi:10.1016/b978-0-12-417148-0.00015-7, ISBN   9780124171480 , retrieved 2021-12-10
  8. 1 2 Mart, Eric G. (2016-09-01). "Neuropsychological Assessment of Testamentary Capacity and Undue Influence". Archives of Clinical Neuropsychology. 31 (6): 554–561. doi: 10.1093/arclin/acw048 . ISSN   0887-6177. PMID   27480988.
  9. Hassan, S. A.; Shah, M. J. (2019-01-01). "The anatomy of undue influence used by terrorist cults and traffickers to induce helplessness and trauma, so creating false identities". Ethics, Medicine and Public Health. 8: 97–107. doi:10.1016/j.jemep.2019.03.002. ISSN   2352-5525. S2CID   151201448.
  10. Hall, Mark. "The Greatest Wealth Transfer In History: What's Happening And What Are The Implications". Forbes. Retrieved 2021-12-10.
  11. 1 2 "Undue Influence: Everything You Need to Know". UpCounsel. Retrieved 2021-12-14.
  12. "Psychological Stress and Cancer - National Cancer Institute". www.cancer.gov. 2012-12-17. Retrieved 2021-12-10.
  13. 1 2 3 4 5 Turkat, Ira Daniel, ed. (1985). Behavioral Case Formulation. doi:10.1007/978-1-4899-3644-8. ISBN   978-1-4899-3646-2.
  14. "What Is Undue Influence in Elder Law Cases?". Loew Law Group. 2020-03-19. Retrieved 2021-12-14.
  15. "Relationship Poisoning | iraturkat.com" . Retrieved 2021-12-31.
  16. "The Basics of Proving Undue Influence in a Court Case". Hackard Law. 2017-04-28. Retrieved 2021-12-14.
  17. "Brace for Impact: The Rise in Trusts & Estate Claims Against Attorneys". Insurance Focus - USI Affinity. Retrieved 2021-12-17.
  18. 1 2 3 "Trust And Estates Now Viewed As The Riskiest Practice Area For Malpractice Claims". www.lmick.com. Retrieved 2021-12-13.
  19. 1 2 3 4 Streisand, Adam F. (2011). "Malpractice Melee: Fending Off the Disgruntled and Disappointed, An Estate Planner's Field Guide".{{cite journal}}: Cite journal requires |journal= (help)
  20. 1 2 3 4 5 6 Spencer, Kevin R. (2018-12-01). "Good Estate Planning Process: A Panacea for Litigation". Estate Planning & Community Property Law Journal. 11 (1): 137–159.
  21. 1 2 3 4 5 Chapman v. Varela, vol. 213, July 20, 2009, p. 1109, retrieved 2021-12-12
  22. "Law section". leginfo.legislature.ca.gov. Retrieved 2021-12-12.
  23. Stiegel, Lori A.; Quinn, Mary Joy (June 2017). "Elder Abuse: The impact of undue influence" (PDF). National Center on Law & Elder Rights. Retrieved December 13, 2021.