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Determining Factors of Undue Influence to Elders

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Undue influence is defined as a judicially created defense to transactions that have been imposed upon weak and vulnerable persons that allows the transactions to be set aside. Obviously elders are the primary victims of such domination. It is good if you are aware of it so that you can have the ability to correct an injustice and greatly improve the quality of an elder's life.

 

A definition of undue influence does exist in of the Civil Code, and reads: "Undue influence consists: 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; 2. In taking an unfair advantage of another's weakness of mind; or 3. In taking a grossly oppressive and unfair advantage of another's necessities or distress."

There are 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 like between elder law attorney in NJ and elderly client.

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.

For other elder law firms undue influence had simple identifiable characteristics:

Mental incapacity resulting from dementia, medications, sleep deprivation or emotional distress

Influencer's power

These "influencers" can be nearly anyone who develops a relationship of trust and confidence with the elder, including family members, caregivers, spiritual advisors, doctors and - yes - even attorneys.

Improper actions or tactics

Controlling the elder's environment through isolation, poisoning their relationships with others, and using threats of physical violence or abandonment are all signs of undue influence.

Unethical transactions

As in the Civil Code definition (supra), taking an unfair or grossly oppressive advantage is a tell-tale sign. Uncharacteristically giving away large sums of money or property without any consideration are obvious clues of undue influence and resulting financial abuse.

The initial determination of this source that an elder has been unduly influenced is a relatively simple matter of common sense. In conducting initial investigation, elder lawyer or this elder law attorney in NJ considers and knows those four characteristics.

His recognition of the abuse, and then taking action to protect the victim, is the contribution he has to offer as a professional advocate for the elderly.

You may want to view the website to have a further study on undue influence.