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

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New Avenues for Crafting Legislation This Project has suggested promising new avenues for those who craft legislation, particularly the four elements suggested by Welden-Smith (2009) (Appendix B) and expanded upon by Nerenberg (2010) (Appendix C). The four elements are stated in the chart below without specific examples in order to highlight the elements. Category I Category II Category III Category IV Victim characteristics contributing to vulnerability Influencers’ characteristics, sources of power, and opportunities Actions or tactics, including emotional, psychological, and legal manipulation Unfair, improper, “unnatural,” or unethical transactions or outcomes Using this approach, those filing petitions for conservatorship might be required (by statute) to give examples of the factors (listed in the statute) that fall within each category to justify the need for conservatorship: 1. Vulnerability resulting from permanent, situational, or induced impairments; emotional distress, personality characteristics, etc.; 2. Power differential between proposed conservatee and others who are in positions to influence them; 3. Actions, tactics, or circumstances suggestive of undue influence, including specific actions taken by the alleged perpetrators; and 4. Actions that would be perceived as unfair, unnatural, unethical, by objective third parties. A preliminary analysis of the cases from the court file review showed that factors from all four of the above categories were present in most if not all cases, suggesting that this could be a promising scheme for evaluating cases that may involve undue influence. Unlike assessments of undue influence in will contests, however, in which analysts decide if undue influence was exercised at a specific point in the past and in relation to a specific transaction with the goal of rectifying the alleged abuse or harm, conservatorship is a protective intervention which looks to stopping current abuse, preventing future losses and perhaps correcting past “bad acts,” e.g., 29
escinding the sale of the house. Risk assessment theory suggests that past victimization raises the risk of future victimization. Applying this concept to conservatorship, one could assume that if someone has been unduly influenced in the past, he or she is likely to be unduly influenced in the future. Demonstrating past instances of undue influence is therefore relevant and meets the criteria of Probate Code §1801(b). Adapting the approach to undue influence for conservatorships as outlined by the chart may require modifications to accommodate the existence of imminent risk where the “bad act” has not actually occurred. Factors that fall within the first three categories might still need to be demonstrated, but Category IV would need to be expanded to include factors that outline imminent risk of future victimization. Another new avenue for policymakers and those drafting legislation would be to consult with community practitioners in order to learn more about factors in undue influence that are in the process of occurring with living elders and dependent adults. Existing Avenues for Crafting Legislation There are other avenues that already exist that could be consulted, including neuropsychological testing, other Probate Code sections, the California Judicial Council form GC-335, Capacity Declaration, case law, and a reexamination of Civil Code §1575. These avenues could be consulted and possibly modified or amended to reflect a definition of undue influence. An examination of relevant case law, which often cites Civil Code §1575, would shed light on the issue of undue influence and isolate factors that have already been adjudicated. A reexamination of Civil Code §1575, first enacted in 1872, would be helpful to determine what has made it so useful for over a century. Taking the main concepts from that code and adapting them to modern terminology and gender-neutral language could be useful. 30
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 and 26: who would deliver the money.’’
Page 27 and 28: esidence (as opposed to, for exampl
Page 29: percent), followed by a change in a
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
Page 77 and 78: professionals who became controvers
Page 79 and 80: • 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
Page 145 and 146:
Borchard grant file review 20. Does
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