When Influence is Undue

Published In Law

February 11th, 2017

It’s human to be influenced by others — and often a healthy reflection of open-mindedness. And the power of influence when it helps snag a sale, win an election, or even make a simple decision is generally applauded.

But problems arise when the influence is “undue” — when one person actually usurps another person’s free will. Often involving fraud, duress, threats, or other forms of deceit, undue influence is a form of coercion and manipulation that frequently targets older people. And, in the most severe cases, it amounts to elder abuse. Sadly, well over two million cases of elder abuse are reported each year in the United States — a large share of them involving undue influence. Statistics reveal only a small part of the story, though. People who are subjected to undue influence are often too embarrassed, too much in denial, or simply don’t recognize they have been wronged to speak up about it.

The issue often comes to light when onlookers — often family members or close friends — become concerned that an older person is being swayed to act out of character, recklessly, or even dangerously. Suspicion may center on a new friend or suitor, a caregiver, or a family member who seems to cross the line between being supportive and friendly to being coercive. Those in special positions of trust, such as spiritual advisors, doctors, and lawyers may also take unfair advantage of that trust to turn into tricksters. Missing money and property or sudden changes in established habits are often the alerts.

A Look at Some Recent Cases

While cases of undue influence are often difficult to track and prove, a few recent ones help illustrate the nature of the beast.

The Roof Repairman

Harry, 87 years old and a recent widower on a fixed income, lived alone in his Missouri home. One autumn day, a man rode up in a flatbed truck piled up with tools and informed Harry that he was a roof specialist who could see that the rooftop shingles of the house were giving way — a potentially dangerous condition that needed to be fixed before the winter snows hit. He said he could do the job at once for $500. The man then climbed atop the roof and treated it by applying a “special fixative” with a squeegee, and promised to return to check on the work. Harry wrote him a check for $500. Two days later, the man returned with bad news: The roof was worse than he thought — and would require another application to be truly weatherproof, this time at a cost of $1,600. Harry again complied with a check.

When Harry’s daughter, who lived a few states away, came to visit the next month, he told her of his recent home repairs. Investigators later determined the “special fixative” had been water; the roof was and remained sound. Even though the local bank had videos capturing the alleged roof repairman on tape as he passed the checks he gained fraudulently, they were unable to track him — and Harry was out the money.  

The Adoring New Suitor

Anita’s friends were more than a little jealous when Jake, a charming man 30-some years her junior, started courting her. The two were seen around town at pricey restaurants, and even frequenting the theater and opera performances Anita had given up years before.

Her longtime caregiver was at first relieved to see that the budding romance seemed to put some spring back in Anita’s step, and grateful that Jake had taken over some of the tasks she found unpleasant, such as driving Anita to dialysis three times a week. She was less grateful when Jake moved in with Anita three months later, and told her that her services were no longer needed. The caregiver also became increasingly concerned and suspicious when she was unable to reach Anita by phone or at home; Jake always answered and said Anita was napping or busy taking a bath.

Anita’s friends also became alarmed when Anita stopped appearing at the weekly bridge game she had attended religiously for nearly two decades. One of them lodged an anonymous complaint with the local Adult Protective Services (APS) agency.

APS investigators located Anita, tied to a bed in a back room. They later discovered that the titles to Anita’s house and the vintage car still parked in her garage had been transferred to Jake’s name. Her bank accounts had been substantially depleted by charges to men’s clothing stores, as well as a hefty down payment on a new condo she knew nothing about.

The Wheedling Son

Jeannette, one of three children, was surprised to hear her mother say that she had recently decided to change her estate plan—placing most of her substantial liquid assets in a trust for one son, Peter. In addition, she said, she had decided to forgive the loan she had made to Peter earlier, ostensibly to fund an additional educational degree. This new plan ran counter to the often-discussed plan of evenly dividing whatever assets might remain at her death among the three children. An accountant, Jeanette had earlier been named the agent in her mother’s power of attorney for finances, but found the document had recently been changed to name Peter the agent. An investigation revealed that over the course of the year, numerous checks totaling more than $30,000 had been written to Peter from his mother’s account — with notations in the memo lines for “Living Expenses.” When pressed, Jeanette’s mother divulged that Peter had contracted a life-threatening disease he wanted to keep secret from the other family members — and needed the money to pay for expensive treatments overseas. Peter told her he would die, or be driven to commit suicide, without them.

In reality, Peter was perfectly physically healthy — using the money to subsidize his online gambling habit.

Those Most at Risk

Margaret Singer, a clinical psychologist who focused on brainwashing and thought reform, is credited with isolating and defining undue influence in her work with cults and criminals. In her later years, she concentrated on how and why many older people could be easily be, in her words: “hornswoggled.”

While a person of any age and stage can be subject to undue influence, Singer and others found that older people are often at greater risk for a number of reasons. Some of the “predisposing” factors that make many seniors susceptible to undue influence include:

  • Death of a spouse—especially if the surviving spouse was heavily dependent on the deceased
  • Depression—which often includes poor mental functioning in addition to negative feelings, increasing vulnerability
  • Isolation—both physical and social, especially dangerous for those who crave social attention
  • Anxiousness—particularly if they perceive that the influencer can help alleviate or stop it
  • Dependency—often exacerbated where there is a need for physical assistance, and
  • Diminished mental capacity—particularly difficulties with memory.

How to Stop It

The law has been slower than psychology to recognize undue influence. Protecting people from being persuaded runs counter to American culture. And when it comes to seniors, most people will staunchly defend their rights to associate with anyone they please and to do whatever they wish with their own property and possessions. As a consequence, laws specifically recognizing and prohibiting elder abuse have only been on the books for a couple of decades, and not all states have adopted them. While undue influence involves crimes such as theft, false impersonation, forgery, embezzlement, and misrepresentation, the strongest civil protections against it are in the legal dictates that a legal contract, will, or trust can be voided if a person entered them under the undue influence of another.

Given its complicated and often secret nature, it is often difficult to suss out and combat undue influence of an older person.

In an ongoing situation, simply making the abuser aware that there are other people actively involved in his or her life can sometimes end the bad behavior.

Experts also recommend having a face-to-face discussion with the abuser—perhaps under the guidance of a mediator trained in elder abuse.

As a last resort, it may be necessary to report the matter to an agency such as Adult Protective Services, which will investigate and sometimes help control and protect an elder’s assets by helping to establish a guardianship or conservatorship.

But the best advice may come from Margaret Singer, the psychologist who studied and explained the processes behind undue influence on the elderly. In an interview focusing on how to help make the elderly less vulnerable,  she advised simply: “Help them get more information, better nutrition, and better health. The more alert people are, the better. Be sure that they have proper lenses in their glasses so that they can watch the newscast and read the newspapers. Make sure that their teeth fit so that they can eat properly. Reducing isolation is also very important. I know priests, rabbis and ministers are busy, but if an older, isolated person has belonged to a church, maybe the church will send someone out to visit.”

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