Undue Influence: Definitions and Applications - California Courts ...

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CONSERVATORSHIP OF THE PERSON ESTATE OF (Name): CASE NUMBER: CONSERVATEE PROPOSED CONSERVATEE 6. (continued) D. Ability to modulate mood and affect. The (proposed) conservatee has does NOT have a pervasive and persistent or recurrent emotional state that appears inappropriate in degree to his or her circumstances. (If so, complete remainder of item 6D.) I have no opinion. (Instructions for item 6D: Check the degree of impairment of each inappropriate mood state (if any) as follows: a = mildly inappropriate; b = moderately inappropriate; c = severely inappropriate.) Anger Anxiety Fear Panic a a a a b b b b c c c c Euphoria Depression Hopelessness Despair a a a a E. The (proposed) conservatee's periods of impairment from the deficits indicated in items 6A–6D (1) do NOT vary substantially in frequency, severity, or duration. (2) do vary substantially in frequency, severity, or duration (explain; continue on Attachment 6E if necessary): b b b b c c c c Helplessness Apathy Indifference a a a b b b c c c F. (Optional) Other information regarding my evaluation of the (proposed) conservatee's mental function (e.g., diagnosis, symptomatology, and other impressions) is stated below stated in Attachment 6F. ABILITY TO CONSENT TO MEDICAL TREATMENT 7. Based on the information above, it is my opinion that the (proposed) conservatee a. has the capacity to give informed consent to any form of medical treatment. This opinion is limited to medical consent capacity. b. lacks the capacity to give informed consent to any form of medical treatment because he or she is either (1) unable to respond knowingly and intelligently regarding medical treatment or (2) unable to participate in a treatment decision by means of a rational thought process, or both. The deficits in the mental functions described in item 6 above significantly impair the (proposed) conservatee's ability to understand and appreciate the consequences of medical decisions. This opinion is limited to medical consent capacity. 8. Number of pages attached: (Declarant must initial here if item 7b applies: __________.) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT) GC-335 [Rev. January 1, 2004] CAPACITY DECLARATION—CONSERVATORSHIP 127 Page 3 of 3
APPENDIX E Court File Review – Detailed Data Tables Table 1. Was undue influence explicitly raised in an official document? Number Percent Yes 23 92% No 2 8% TOTAL 25 100% Table 2. Type of conservatorship requested in petition Number Percent Person and estate 19 76% Estate only 6 24% Person only 0 0% TOTAL 25 100% Table 3. Who petitioned for conservatorship? Number Percent Private professional conservator 12 48% Public Guardian 8 32% Family member 6 24% Friend or acquaintance 1 4% Multiple petitioners 3 12% Note: Percentages do not sum to 100 because some cases had multiple petitioners. 128
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UNDUE INFLUENCE: DEFINITIONS AND AP
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Claims of undue influence can be di
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probate courts. They encounter it a
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4. Focus groups with San Francisco
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More recent law is contained in Cal
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searching bibliographic databases a
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submissiveness to point that victim
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Elements of Undue Influence Describ
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Category I Category II Category III
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Category I Category II Category III
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Focus Groups To gain greater insigh
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for love, emotional attachment, or
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who would deliver the money.’’
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esidence (as opposed to, for exampl
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percent), followed by a change in a
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escinding the sale of the house. Ri
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Capacity Declaration Form The menta
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Case Examples Case Five A 75-year-o
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to undue influence and to more reli
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Project staff have been invited to
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APPENDIX A REPORTS OF CASES DECIDED
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The facts upon which the allegation
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APPENDIX B A STATUTORY DEFINITION O
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whether undue influence has taken p
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etween the testator and the influen
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guardian/ward, physician or nurse/p
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undue influence reduced from the ca
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said at times that she was afraid o
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According to Dr. Spar, the common r
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disposition to exert undue influenc
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her overall mental and physical wea
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Familial relationships are frequent
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This presumption of undue influence
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element (4) requires a disposition
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intentions of testator). However, w
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APPENDIX C Literature Review on Und
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7. How professionals exploit relati
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that can be brought to bear in doin
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Page 89 and 90: not exhibit Stockholm syndrome, law
Page 91 and 92: financial gain. Others have focused
Page 93 and 94: esult or outcome of the undue influ
Page 95 and 96: Association, 2008). Naimark (2001)
Page 97 and 98: 2. Power Differentials Undue influe
Page 99 and 100: goes back even further. Abraham Nie
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Page 105 and 106: The authors note that courts tend t
Page 107 and 108: ing a claim that the church had use
Page 109 and 110: 8. An elder’s will, living will,
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Page 113 and 114: ecovery of damages, attorneys’ fe
Page 115 and 116: As noted earlier in this literature
Page 117 and 118: witnesses with respect to the impor
Page 119 and 120: Donohue, W. A. (1985). The politics
Page 121 and 122: Naimark, D. (2001). Financial explo
Page 123 and 124: Rusch, J. J. (1999). The social eng
Page 125 and 126: APPENDIX D Capacity Declaration For
Page 127: CONSERVATORSHIP OF THE PERSON ESTAT
Page 131 and 132: Table 8. Age of proposed conservate
Page 133 and 134: Table 12. Proposed conservatee’s
Page 135 and 136: Table 16. Other traits of alleged a
Page 137 and 138: Table 21. How long has the alleged
Page 139 and 140: Table 24. Other elements/characteri
Page 141 and 142: Borchard grant file review 1. Case
Page 143 and 144: Borchard grant file review 12. Tact
Page 145 and 146: Borchard grant file review 20. Does
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