There appears to be a quiet epidemic underway involving our elderly citizens in our country and maybe closer to home than we think, in our county! Many people are not even aware of it! It is not the type of epidemic that would be visible in the form of say a sickness or when thousands of people show up at a hospital. But it is still a terrible thing and can cause untold anguish, pain and financial loss to families.
Many victims have no idea they have this sickness amongst them till after a relative or close family member has past away. It is only then the family realizes that a family member
or non-family care giver has used undo influence and has stolen all the assets of the person they were suppose to be taking care of. This can take the form of influencing the elderly in making changes in their will, money being withdrawn from bank accounts and property being transferred secretly to the care giver . They call this Undo Influence!
Undue influence is the misuse of one's role and power to exploit the trust, dependence, and fear of another to deceptively gain control over that person's decision in a particular matter. Along with capacity and consent, undue influence is a key concept in elder law. Capacity and consent relate primarily to an individual's abilities to understand and process information in order to take action or to make decisions. Undue influence focuses more on the relationship between the individual and another person, coupled with that person's opportunity and power to manipulate the vulnerable person's thoughts and actions. An older person may be more vulnerable to undue influence because he or she has diminished capacity or the person has become isolated from trustworthy family and friends.
Older individuals may be targeted merely because they possess more assets, such as savings, annuities and retirement accounts, stocks and bonds, insurance policies, and property than younger people. Those with cognitive impairments, mental health conditions, or physical disabilities may be dependent upon others (family members, friends, formal and informal caregivers, or court appointed representatives) for assistance in making financial decisions or carrying out daily transactions, and therefore may be even more vulnerable to theft, exploitation or undue influence.
Judges, court staff, attorneys and others who work with elderly persons should be familiar with three important concepts relevant to identifying and responding to elder abuse: capacity, consent, and undue influence. Elder persons can be more vulnerable to abuse and exploitation if they lack capacity to make every day decisions, to give meaningful consent based on their ability to understand the meaning of transactions, or are subject to the undue influence of trusted people in their lives. Assessing whether a person has capacity, gave consent or was under undue influence can be critical to determining whether a person is victim of elder abuse.
Capacity is a general term used to describe the cluster of mental skills, such as memory and logic, as well as behavioral and physical functioning, that people use in their everyday lives. It is not a fixed or static condition. People can have capacity for different activities and tasks, and capacity can vary across time, situations and location. Determining capacity in older adults can be very difficult and often requires gathering information from many sources, including family members, medical care professionals, mental health care professionals, adult protective service workers, and other involved parties.
Consent requires individuals to be able to understand the transaction or activity, make judgments about it, and decide if it is something they choose. A critical element of consent is whether the person has the capacity to consent. The capacity of older persons to consent is historically most commonly applicable in the provision of adult protective services.
Undue Influence is the misuse of one's role and power to exploit the trust, dependence, and fear of another to deceptively gain control over that person's decision making or assets. Undue influence typically is not itself a crime, but it can be a means for committing a crime, including exploitation, fraud, domestic abuse, and sexual assault.
For example, in its definition of the crime of exploitation, the Nevada elder abuse statute specifies undue influence as a method for gaining control over a vulnerable person does make undue influence a crime by including it in the types of acts that, when committed against an elderly or disabled person, constitute the crime of financial exploitation.
“any act of persuasion that over-comes the free will and judgment of another, including exhortations, importuning, insinuations, flattery, trickery, and deception, may amount to undue influence. Undue influence differs from duress, which consists of the intentional use of force, or threat of force, to coerce another into a grossly unfair transaction.“
Four elements must be shown to establish undue influence.
First, it must be demonstrated that the victim was susceptible to overreaching. Such conditions as mental, psychological, or physical disability or dependency may be used to show susceptibility.
Second, there must be an opportunity for exercising undue influence. Typically, this opportunity arises through a confidential relationship. Courts have found opportunity for undue influence in confidential relationships between husband and wives, fiancé and fiancée,parent and child, trustee and beneficiary, administrator and legatee, guardian, attorney and client, doctor and patient, and pastor and parishioner.
Third, there must be evidence that the defendant was inclined to exercise undue influence over the victim. Defendants who aggressively initiate a transaction, insulate a relationship from outside supervision, or discourage a weaker party from seeking independent advice may be attempting to exercise undue influence.
Fourth, the record must reveal an unnatural or suspicious transaction. Courts are wary, for example, of testators who make abrupt changes in their last will and testament after being diagnosed with a terminal illness or being declared incompetent, especially if the changes are made at the behest of a beneficiary who stands to benefit from the new or revised testamentary disposition.
Nevertheless, courts will examine the facts closely before finding that a transaction has been tainted by undue influence. Mere suspicion, surmise, or conjecture of overreaching is insufficient. The law permits loved ones and confidants to advise and comfort those in need of their support without fear of litigation. Courts are also aware that the doctrine of undue influence can be used as a sword by the vindictive and avaricious who seek to invalidate a perfectly legal transaction for personal gain. When undue influence is found to have altered a transaction, however, courts will make every effort to return the parties to the same position they would have occupied had the overreaching not occurred.
To those who have been told that their loved ones situation is civil in nature and not a crime, David Kessler consults with families and victims in order to get law enforcement and prosecutors to initiate an investigation which will lead to a successful prosecution of the predators who prey on our senior citizens.
David M. Kessler is a retired Police Officer (former Commander of the Financial Crimes Unit) with the Dekalb County Police Department in Decatur, Georgia. He has dedicated his professional life to providing education and guidance for public and private sector professionals on the topic of exploitation of the elderly, and making certain those who prey on elderly victims are punished. David was recruited by the Ohio Attorney General in 1999 to serve as Chief Investigator of the Attorney General's Consumer Protection Unit. Within this role, David's primary focus became the protection of senior citizens against those who would prey upon them.
With the coming demographic avalanche as the Boomers reach their 60s and the over-80 population swells, lawyers face a growing challenge: older clients with problems in decision-making capacity.
While most older adults will not have impaired capacity, some will. Obvious dementias impair decision-making capacity -- but what about older adults with an early stage of dementia or with mild central nervous system damage? Such clients may have subtle decisional problems and questionable judgments troubling to a lawyer.
Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers offers elder law attorneys, trusts and estates lawyers, family lawyers, and general practitioners a conceptual framework and a practical system for addressing problems of client capacity, in some cases with help from a clinician.
This handbook represents a unique collaboration of lawyers and psychologists. It offers ideas for effective practices and makes suggestions for attorneys who wish to balance the competing goals of autonomy and protection as they confront the difficult challenges of working with older adults with diminished capacity.
About the Authors
The mission of the American Bar Association (ABA) Commission on Law and Aging is to strengthen and secure the legal rights, dignity, autonomy, quality of life, and quality of care of elders. It carries out this mission through research, policy development, technical assistance, advocacy, education, and training.
The ABA Commission consists of a 15-member interdisciplinary body of experts in aging and law, including lawyers, judges, health and social services professionals, academics, and advocates. With its professional staff, the ABA Commission examines a wide range of law-related issues, including: legal services to older persons; health and long-term care; housing needs; professional ethical issues; Social Security, Medicare, Medicaid, and other public benefit programs; planning for incapacity; guardianship; elder abuse; health care decision-making; pain management and end-of-life care; dispute resolution; and court-related needs of older persons with disabilities.
The American Psychological Association (APA) is the largest scientific and professional organization representing psychology in the United States and is the world's largest association of psychologists. Through its divisions in 53 subfields of psychology and affiliations with 59 state, territorial, and Canadian provincial associations, APA works to advance psychology as a science, as a profession, and as a means of promoting health, education, and human welfare. The APA Office on Aging coordinates the association's activities pertaining to aging and geropsychology (the field within psychology devoted to older adult issues). The Committee on Aging (CONA) is the committee within the APA governance structure dedicated to aging issues. Its six expert geropsychologists are selected for three-year terms. Together, the Office on Aging, CONA, and association members promote the health and wellbeing of older adults and their families through expanded scientific understanding of adult development and aging and the delivery of appropriate psychological services to older adults.