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

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Borchard grant file review 8. Did the alleged abuser try to file a competing petition or contest the conservatorship? nmlkj nmlkj nmlkj Yes No Unable to determine 9. How long has the alleged abuse been going on? nmlkj nmlkj nmlkj nmlkj nmlkj Less than 1 year 1 to 2 years 2 to 5 years More than 5 years Unable to determine 10. What type of material or financial impact has the proposed conservatee experienced? (Check all that apply) gfedc Loss of real property gfedc Unauthorized purchases gfedc Loss of cash/savings gfedc Change in will or trust gfedc Unauthorized loans gfedc Unable to determine gfedc Other (please specify) 11. What is the purpose of the conservatorship with respect to the alleged undue influence? (Check all that apply) gfedc gfedc gfedc gfedc gfedc gfedc gfedc gfedc To take control out of the h<strong>and</strong>s of the alleged abuser (e.g., a trustee) Need for third party legal action to stop the abuse To provide court supervision of assets that are in jeopardy To recover misappropriated assets To prevent further loss of assets To revoke contracts (including marriage) To replace an abusive conservator Unable to determine gfedc Other (please specify) 141 Page 2
Borchard grant file review 12. Tactics used by alleged abuser (Check all that apply) gfedc Aggressive initiation of transactions gfedc Secrecy gfedc Emphasis on haste gfedc Lying or deception gfedc Repeated solicitations gfedc Fostering dependence gfedc Transaction in unusual setting gfedc Reinforcing feelings of helplessness gfedc Transaction at unusual time gfedc Increasing closeness or intimacy in relationship gfedc Knowingly ignoring or violating an advance directive gfedc Use of romantic overtures or sex to gain compliance gfedc Multiple persuaders (multiple people going along with influencer) gfedc gfedc advice gfedc gfedc Multiple persuasions (multiple arguments/inducements) Discouragement of third party advisors or independent Isolation Relationship poisoning gfedc gfedc gfedc Eliciting sympathy Invoking family loyalty Appealing to elder’s affinities (e.g., church, ethnic group affiliations) gfedc gfedc Playing on weaknesses Unable to determine gfedc Other (please specify) 13. Other elements/characteristics of the undue influence (Check all that apply) gfedc Transaction unfairly benefits others gfedc Level of elder’s care not commensurate with assets gfedc Level of elder’s care not commensurate with amount paid gfedc Elder is ignorant of facts or cannot explain facts of transaction gfedc Changes in wills, trusts, etc., diverge significantly from past gfedc Behavior of caregiver falls outside of professional responsibility or violates professional ethics gfedc A person in a position of power/responsibility did not take steps to prevent the act that benefited him or her gfedc Unable to determine gfedc Other (please specify) 2. Characteristics of Proposed Conservatee 14. Age (Leave blank if unknown) 142 Page 3
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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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professionals who became controvers
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• Hostage takers threaten to kill
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Walker identified four general char
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of anxiety, avoidance behavior and
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and Vicary later retracted some of
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protecting themselves against manip
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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 103 and 104: to the accused to show that there w
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,
Page 111 and 112: covered under the prohibited transf
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 and 128: CONSERVATORSHIP OF THE PERSON ESTAT
Page 129 and 130: APPENDIX E Court File Review - Deta
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: Borchard grant file review 1. Case
Page 145 and 146: Borchard grant file review 20. Does
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