How do older adults in California make decisions about important financial issues and healthcare matters? And when should we worry that they may have been unduly influenced by another person?
In 2014, California law defining undue influence changed; legislators were concerned about contemporary issues surrounding elder care, and wanted to ensure that the definition properly addresses concerns about undue influence in estate planning and in probate. Because, when an elderly adult in California writes a will or makes a decision about a durable power of attorney, it is important to consider whether everyone involved has that elderly adult’s best interests in mind.
Overview of Undue Influence in California
Under California Welfare and Institutions Code § 15610.70, undue influence is defined broadly as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” Undue influence can be exerted whenever an elderly adult makes any kind of financial decisions about his or her future. When a court decides whether there was undue influence in a person’s ultimate decisions about provisions of a will, for instance, the court will take into account the following factors:
Undue Influence:Vulnerability of the victim (evidence of which can include illness, age, education, disability, injury, emotional distress, isolation and dependence)
Whether the person exerting undue influence knew—or should have known—about the victim’s vulnerability
Apparent authority of the influencer, or the person allegedly exerting undue influence, which can include the influencer’s status as a fiduciary, family member, healthcare provider, or other expert or adviser to the alleged victim
Tactics used by the influencer, such as controlling the elder’s medical care or social interactions with others, using affection or intimidation to convince the elder to take certain steps, and changes in the elder’s personal or property rights as a result of the influence
Equity of the outcome of the alleged undue influence.
In our state, California Probate Code § 86 makes clear that individuals are protected from undue influence in establishing wills, trusts and conservatorships.
Why You May Need an Attorney
Undue Influence:Financial elder abuse is a serious problem in California and across the country, and it is important to make sure that elderly loved ones are not deceived by people who claim to have their best interests in mind. To be sure, revisions to California Probate Code § 86 emphasize the harms associated with the financial abuse of an elder person or a dependent adult.
Why should you speak with a lawyer about undue influence? When it comes to probate, if undue influence occurred, a deceased person’s will, for instance, may be invalidated, and the probate process can become extremely complicated. In addition, it can be complicated to prove that undue influence occurred. But, an experienced estate planning lawyer can help.
Consult a California Trusts and Estates Lawyer
If you have concerns about whether undue influence was exerted when your elderly loved one drafted a will or another important document, a dedicated estate planning lawyer in California can help with your case.