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

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• Inability to make decisions without the advice and reassurance of others; • Avoidance of personal responsibility, including the avoidance of jobs that require independent functioning and positions of responsibility; • Intense fear of abandonment and a sense of devastation or helplessness when relationships end; persons with the disorder often move right into another relationship when one ends; • Over-sensitivity to criticism; • Pessimism and lack of self-confidence, including a belief that they are unable to care for themselves; • Avoidance of disagreeing with others for fear of losing support or approval; • Inability to start projects; • Difficulty being alone; • Willingness to tolerate mistreatment and abuse from others; • Placing the needs of their caregivers above their own; and • Tendency to be naïve and to live in fantasy. Courts may also consider multifaceted medical, social, and environmental histories that analyze the processes, interactions, conditions, and circumstances of the person alleged to be have been unduly influenced or susceptible. Situational events and circumstances, such as the loss of a loved one, may also play a role. Several researchers and practitioners have noted that elders who are recently widowed are particularly susceptible to the advances of persons who seek to exploit. The vulnerability associated with life events or circumstances may be permanent or temporary (Pennant, 1999; Quinn, 2005). Victims who are not impaired to begin with may be rendered so by those who seek to influence them. This can be done through such means as depriving them of nourishment or overor under-medicating them (Turkat, 2003). 95
2. Power Differentials Undue influence involves powerful individuals getting those who are less powerful to do things they would not have done otherwise. Influencers draw their power from a variety of sources. • Persons in positions of trust or confidence are believed to hold power over those who trust or confide in them. • Personality traits. Some perpetrators are naturally charismatic or persuasive. • Granted power. Some influencers are placed in positions of power by others, as was the case with those charged to guard prisoners of war. These individuals were granted authority to control, confine, reward, punish, and even terrorize their charges. Similarly, caregivers may be granted high levels of control over those they are charged to serve. • Professional authority. Social influence theories describe how the power to persuade may be derived from the natural authority attached to jobs, professions, or social class. Caregivers in particular have high levels of control, as victims may depend on them for food, water, medications, and other necessities. • Privilege. Domestic violence theory holds that batterers derive their power from social, historical, and economic forces. Power that is derived from gender, class, race other socioeconomic forces is reinforced by institutions like the criminal justice system. 3. Tactics of Undue Influence Specific actions that perpetrators use depend on the outcomes being sought. When the motive is financial, the persuasion may focus on getting someone to surrender assets or property, whereas in the case of domestic violence, the motive is domination, power, or control. The tactics that perpetrators use may also reflect their assessments of victims’ specific vulnerabilities. It has frequently been noted that perpetrators assess the psychological makeup of their victims and “customize” their approaches (Pratkanis & Shadel, 2005). Specific tactics that appear in the literature include: • Isolating victims; • Controlling the flow of information to keep victims unaware; 96
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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
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
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: Association, 2008). Naimark (2001)
Page 99 and 100: goes back even further. Abraham Nie
Page 101 and 102: the signing of contracts, the contr
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 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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