It can be hard to distinguish between influence and undue influence. People influence each other every day, but that does not make it undue. Undue influence is far more sinister. Legally speaking, undue influence means the complete replacement of the victim’s intent with the intent of the wrongdoer. Instead of a document reflecting what I want, it reflects what someone else wants. This is different from simple influence, where someone may be persuaded to take a certain act (like creating a Will), but they do so under their own intent.
In other words, undue influence comes down to control. When a wrongdoer controls another person so completely that the victim is no longer capable of knowing or expressing his or her own intent. With that in mind, let’s discuss some of the warning signs for undue influence.
Who Commits Undue Influence?
Undue influence cases usually start with someone who is close to the victim—a family member, friend, or neighbor. And that person may begin by doing favors for the victim. But over time favors becomes control as the wrongdoer begins to control the victim’s access to others. If your loved one is hard to talk to because someone else is interfering with your communications, then that can be a big warning sign of undue influence.
A wrongdoer may also control things like food, medication, medical appointments, transportation, and financial information. The more a wrongdoer controls in the life of a victim, the more likely you are dealing with undue influence. This is especially true when the victim is someone who is susceptible to undue influence. For instance, an elder diagnosed with Alzheimer’s/dementia will be more susceptible to the effects of control. The same is true for someone who is significantly ill or terminally ill, mentally impaired or physically impaired, or anyone dependent on others for their health and wellbeing. The more vulnerable the victim, the more likely control will cause the victim to be subject to undue influence.
Anyone who controls a victim’s medication is in a position to apply undue pressure. The threat of withholding medication or food can be enough to force a victim to sign documents or take actions he otherwise would never do. And these “threats” need not be expressed. Just knowing that someone who controls your medicine and food wants you to do something is enough of a “threat” to overcome the victim’s free-will.
The same applies to anyone who occupies a position of power over a victim. For example, anyone who has the trust of the victim may be in a position to unduly influence that person. A close family member or friend may occupy a position of trust to the victim. If that position of trust is abused, then the victim can be unduly influenced to sign a document to take an action that they otherwise would not do.
These clues mean that anytime you have someone who is close to a vulnerable elder, there is a chance that undue influence could develop in that relationship. Of course, not everyone who is close to an elder will attempt to unduly influence the elder. But when undue influence does occur, it tends to be in situations where someone has gotten close to the elder, gained the elder’s trust, and gained control of the elder’s finances, health and/or wellness. If you see someone in a position of trust who begins to restrict access to the elder, while at the same time controlling the elder’s finances and necessaries of life, then you have a clear warning signal of undue influence.
Take Action if You Suspect Undue Influence
These warning sign must be taken seriously. It is all too easy to ignore the signs and hope for the best. The most often phrase we hear from people whose family members were unduly influenced is “I never thought this would happen to me and my family.” But it does happen to people in all walks of life. And it happens when you least expect it. Pay attention to these warning signs, and take action early if you see anything you believe to be suspicious.
