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

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anch having never ridden a horse or previously been interested in such an investment, that people who “sound so nice on the phone” are not taking advantage of them, or that a caregiver wants to marry them solely based on affection. Victims who are intelligent, alert, and oriented and who previously worked in high level financial settings can have unshakable beliefs in scams. Victims of undue influence may also have some of the characteristics described in California Probate Code §811 (4) which refers to “inability to modulate mood and affect.” They may be focused on the euphoria at the thought of “winning” and be apathetic and indifferent to not winning. Neuropsychological Testing Finally, a review of the elements of in-depth neuropsychological testing would be useful because undue influence is addressed directly. Tests may include measures of overall cognitive functioning, both short- and long-term memory, mental agility and flexibility, ability to learn and retain new information, attention, language and speech abilities, and visual/motor functioning, as well as insight and judgment. As shown through the focus groups, the file review, the literature review and the review of California law, poor insight and poor judgment are linked to undue influence whether or not there is cognitive impairment. Persons with poor insight and judgment do not understand their current situation and the impact and consequences of their decisions, including those that affect their finances, their medical treatment, and their romantic lives. Another dimension that can be tested is executive functioning, which includes ability to think abstractly, integrate stored information, use memory to meet the demands of a current situation, draw inferences, and manipulate information in one’s mind as one attempts to solve problems and consider alternative solutions. It also includes processing of complex information, the organizing of complex information, and the use of such information in planning and strategizing. Several of the elements of executive functioning correlate with California Probate Code §811, which addresses deficits in mental functioning. 33
Case Examples Case Five A 75-year-old man who was alert and oriented fell victim to both telemarketers and bogus sweepstakes companies. He was a retired accountant who had been employed in a large accounting firm. He had been widowed for two years. He was convinced that “winning” was just around the corner. His house was in foreclosure and his credit card debt was $22,000. Both his homeowner’s insurance and property tax payments were in arrears. He acknowledged that he had the funds to pay the bills, but considered that the money he was spending on the scams would result in winnings of $1,000,000. He said, “It is an investment just like the stock market.” He also said, “They are so nice when they call. They tell me that I deserve to win this money, that I’ve deserved it all my life and now I can have it.” He was indifferent to the fact that he had spent $129,000 in nine months. He said, “Well, it just keeps going up, doesn’t it?” He was opposed to the conservatorship and firm in his denial of being defrauded, despite warnings from the police, Adult Protective Services, and close friends. Recommendations for Community Practitioners In past decades, probate courts did not have investigators or visitors to inform them about the situations of proposed conservatees. Community practitioners were not much involved with petitions for conservatorships and had little contact with the probate courts. But these circumstances are changing around the country and probate courts are receiving more information either from their own staff or from community practitioners who want and need to know how to be effective in the legal arena so as to benefit the citizens they serve. Community practitioners would benefit from scales or instruments that measure the following factors: • Judgment and insight (88 percent of the cases in the file review reported deficits in these areas among proposed conservatees); 34
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 and 30: percent), followed by a change in a
Page 31 and 32: escinding the sale of the house. Ri
Page 33: Capacity Declaration Form The menta
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
Page 81 and 82: Walker identified four general char
Page 83 and 84: of anxiety, avoidance behavior and
Page 85 and 86:
and Vicary later retracted some of
Page 87 and 88:
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
Page 123 and 124:
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
Page 143 and 144:
Borchard grant file review 12. Tact
Page 145 and 146:
Borchard grant file review 20. Does
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