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

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Case Characteristics A large majority of petitions (76 percent) were for conservatorship of both the person and the estate. None of the cases reviewed involved petitions for conservatorship only of the person. (See Table 2.) In the prior studies of the general conservatorship population, four to five percent of cases involved petitions for conservatorship of the person only. The general conservatorship population also seemed somewhat less likely than the undue influence sample to involve petitions for conservatorship of the estate only (5 to 6 percent versus 24 percent). Private professional conservators petitioned for conservatorship in almost half (48 percent) of cases, followed by the Public Guardian (32 percent) and family members (24 percent). A small proportion of cases involved multiple petitioners. (See Table 3.) It was uncommon for the alleged abuser to file a competing petition or contest the conservatorship; that occurred in only eight percent of cases (see Table 4). The most common reason for the establishment of the conservatorship —specifically with respect to undue influence—was to provide court supervision of assets that were in jeopardy (88 percent). Other common reasons for conservatorship included preventing further loss of assets (80 percent) and taking control out of the hands of the alleged abuser (24 percent). (See Table 5.) The court files reflected that adult protective services (APS) was involved in all but one case (96 percent; see Table 6). This is a much higher incidence than in prior studies dealing with the general conservatorship population, in which APS involvement ranged from 33 to 54 percent. Characteristics of Proposed Conservatees (PCs) Approximately half of the PCs were female and half were male (see Table 7). PCs in the two prior studies were somewhat more likely to be female (ranging from 58 to 68 percent of the sample). Nearly three-quarters of PCs were 80 years of age or older, and more than one-quarter were 90 or older, with a mean age of around 81. (See Table 8.) There was insufficient information in the court files to assess the racial/ethnic composition of the sample. PCs were mostly likely to be widowed (44 percent) or to have never been married (20 percent). Only 5 of the 25 PCs were married. (See Table 9.) All of the PCs lived in a private 25
esidence (as opposed to, for example, a nursing home or assisted living facility; see Table 10a). Although it may be an artifact of a small sample, the general conservatorship population examined in previous studies was much less likely to live in a private residence (37 to 53 percent). PCs most commonly lived alone (40 percent) or with a caregiver or attendant (20 percent). Only 1 of the 25 PCs lived with a spouse who was not also a caregiver. (See Table 10b.) Having involved family members is commonly viewed as a protective factor against abuse by strangers. Interestingly, nearly two-thirds (64 percent) of PCs had family members involved in their lives (see Table 11). However, without additional information about the length and nature of involvement, it is difficult to explain this finding. For example, family members may have become involved after the PC had already experienced a loss or may have had a direct or indirect role in the undue influence itself. All of the PCs had at least one impairment, whether mild or severe. All but two (92 percent) had multiple impairments, with more than two-thirds having five or more. Consistent with the underlying rationale for many conservatorships, the most common impairments were related to diminished mental capacity (88 percent), cognition (84 percent), and executive functioning (72 percent). Many PCs also had physical impairments including issues with mobility (60 percent) and activities of daily living (52 percent), as well as mental health issues (52 percent) and depression (44 percent). (See Table 12.) Court files were reviewed for evidence of other traits of PCs that are sometimes associated with susceptibility to undue influence. Lack of insight and poor judgment (both 88 percent) were by far the most common of these traits. More than one-third (36 percent) of PCs could be characterized as acquiescent and one-quarter (24 percent) could be characterized as lonely. (See Table 13.) Characteristics of Alleged Abusers (AAs) In well over half (60 percent) of cases, there was more than one AA (see Table 14); as a result, percentages reported are based on the total number of abusers (40) rather than the total number of cases (25). AAs appeared more likely to be male than female (48 percent versus 30 percent), although the gender of the abuser was unknown in roughly one-quarter cases, primarily 26
Page 1 and 2: UNDUE INFLUENCE: DEFINITIONS AND AP
Page 3 and 4: Claims of undue influence can be di
Page 5 and 6: probate courts. They encounter it a
Page 7 and 8: 4. Focus groups with San Francisco
Page 9 and 10: More recent law is contained in Cal
Page 11 and 12: searching bibliographic databases a
Page 13 and 14: submissiveness to point that victim
Page 15 and 16: Elements of Undue Influence Describ
Page 17 and 18: Category I Category II Category III
Page 19 and 20: Category I Category II Category III
Page 21 and 22: Focus Groups To gain greater insigh
Page 23 and 24: for love, emotional attachment, or
Page 25: who would deliver the money.’’
Page 29 and 30: percent), followed by a change in a
Page 31 and 32: escinding the sale of the house. Ri
Page 33 and 34: Capacity Declaration Form The menta
Page 35 and 36: Case Examples Case Five A 75-year-o
Page 37 and 38: to undue influence and to more reli
Page 39 and 40: Project staff have been invited to
Page 41 and 42: APPENDIX A REPORTS OF CASES DECIDED
Page 43 and 44: The facts upon which the allegation
Page 45 and 46: APPENDIX B A STATUTORY DEFINITION O
Page 47 and 48: whether undue influence has taken p
Page 49 and 50: etween the testator and the influen
Page 51 and 52: guardian/ward, physician or nurse/p
Page 53 and 54: undue influence reduced from the ca
Page 55 and 56: said at times that she was afraid o
Page 57 and 58: According to Dr. Spar, the common r
Page 59 and 60: disposition to exert undue influenc
Page 61 and 62: her overall mental and physical wea
Page 63 and 64: Familial relationships are frequent
Page 65 and 66: This presumption of undue influence
Page 67 and 68: element (4) requires a disposition
Page 69 and 70: intentions of testator). However, w
Page 71 and 72: APPENDIX C Literature Review on Und
Page 73 and 74: 7. How professionals exploit relati
Page 75 and 76: 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
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financial gain. Others have focused
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esult or outcome of the undue influ
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Association, 2008). Naimark (2001)
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2. Power Differentials Undue influe
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goes back even further. Abraham Nie
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the signing of contracts, the contr
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to the accused to show that there w
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The authors note that courts tend t
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ing a claim that the church had use
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8. An elder’s will, living will,
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covered under the prohibited transf
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ecovery of damages, attorneys’ fe
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As noted earlier in this literature
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witnesses with respect to the impor
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Donohue, W. A. (1985). The politics
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Naimark, D. (2001). Financial explo
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Rusch, J. J. (1999). The social eng
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APPENDIX D Capacity Declaration For
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CONSERVATORSHIP OF THE PERSON ESTAT
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APPENDIX E Court File Review - Deta
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Table 8. Age of proposed conservate
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Table 12. Proposed conservatee’s
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Table 16. Other traits of alleged a
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Table 21. How long has the alleged
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Table 24. Other elements/characteri
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Borchard grant file review 1. Case
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Borchard grant file review 12. Tact
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Borchard grant file review 20. Does
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