VII. Undue Influence

To this point, the handbook has focused on a consent is obtained through undue influence conceptual framework and assessment tools for (Black’s Law Dictionary, 2004). While understanding decisional capacity. Psychologists diminished capacity may make one more working with older adults may come across a vulnerable to undue influence, it is not a related but distinct area of law, that of undue necessary component of the dynamic. Therefore, influence. In Chapter 2, relevant legal undue influence can be present even when the definitions are given to describe undue victim clearly possesses mental capacity. Much influence. The goal of the current chapter is to of the law of undue influence is forged in state- review critical elements of the legal definitions, specific case law that exhibits a great deal of further describe the dynamic of undue influence, variability in defining undue influence, so the introduce clinical frameworks for thinking about law of each state must be consulted. undue influence, provide suggestions for assessment, and give a clinical case example. It Evaluations to examine the potential should be noted that little empirical research presence of undue influence require exists to guide clinicians in their assessment of knowledge of several concepts: undue influence. At present a number of theoretical frameworks are used to understand Capacity: Broadly refers to an individual’s undue influence and to present the data in court. ability to receive and evaluate information We will begin by briefly reviewing relevant and make and express a decision. legal definitions.

Legal Standards of Undue Influence Financial Exploitation: A type of elder abuse, involving the improper use or theft of The Restatement of Contracts, an another’s assets. authoritative secondary legal source, defines undue influence as follows: Undue Influence: When exploiters, whether Undue influence is unfair persuasion of family, acquaintances, or strangers, use their a party who is under the domination of power to deceptively gain control over the the person exercising the persuasion or decision making of a victim. Often involves who by virtue of the relation between financial exploitation. them is justified in assuming that that person will not act in a manner Undue Influence in Relationships inconsistent with his welfare Based on Trust and Confidence (“Restatement (Second) of Contracts,” Keeping in mind the wide variability across 1981). states, courts often require two elements to be proven in a case of undue influence involving a The doctrine is akin to doctrines of fraud contract: (1) a special relationship between the and duress and may be alleged in legal parties based on confidence and trust; and (2) transactions, such as executing a will, entering a intentional and improper influence or persuasion contract, or conveying property to another, as of the weaker party by the stronger. well as cases of financial abuse, sexual abuse, Psychologists performing assessments of and even homicide. Other definitions stress the undue influence must therefore determine if a psychological component of undue influence, confidential relationship exists that would the intentional and improper use of power or provide the opportunity for undue influence to trust in a way that deprives a person of free will occur. More descriptively, undue influence and substitutes another’s objective. occurs when a person uses his or her role and Consent to a contract, transaction, or power to exploit the trust, dependency, and fear relationship, or to conduct, is voidable if the of another. Perpetrators of undue influence use

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this power to deceptively gain control over the social conditions prevalent in cases of undue decision making of the second person (Singer, influence situations. Dr. Blum’s “IDEAL” 1993). Psychologists working with the older model is organized around five main categorical adults on cases regarding financial capacity need headings and several subdivisions. These to be knowledgeable about undue influence and headings include isolation from family and integrate that knowledge into every stage of the friends; dependency on the perpetrator; assessment process. emotional manipulation of the victim; acquiescence of the victim due to the previous Psychological Frameworks for factors; and financial loss. Dr. Blum created a Understanding Undue Influence practical and qualitative tool, the “Undue Undue influence is an emerging area of Influence Worksheet,” used by some lawyers, study for psychologists and, to date, there is court investigators, law enforcement personnel little published research to draw upon. Here we and adult protective services workers. The Blum introduce several models, but draw upon Worksheet is essentially a data collection tool, common elements in our discussion. We present organized around the five main categorical four models that have been used to understand headings and several subdivisions. Its aim is to undue influence in older adults. Margaret help clarify for the user whether excessive Singer, PhD, an early noted expert in this field manipulation is present. The data then must be originally developed her model regarding undue evaluated in light of local statutes and case law influence out of her work with cult victims. defining undue influence. Subsequent clinical models, such as the Brandle/ A third clinical framework has been Heisler/ Steigel Model, Blum’s “IDEAL” model, developed by clinical and forensic psychologist and Bernatz’s “SCAM” model draw heavily on Susan I. Bernatz, PhD. The “SCAM” model the work of Singer and her collaborator, builds on Singer’s and Blum’s work in which Abraham Nievod, PhD, JD. social influence conditions are emphasized, yet Singer’s framework emphasized social also includes factors that contribute to the influence conditions that the suspect crafts victim’s “susceptibility” and addresses the unknowingly to the victim. These conditions perpetrators “active procurement” of the legal or included creating isolation, fostering a siege financial transaction(s). The “SCAM” model mentality, inducing dependency, promoting a views undue influence as an inter-relational sense of powerlessness, manipulating fears and concept between the victim and the perpetrator vulnerabilities, and keeping the victim unaware and incorporates four main categories that and uninformed. include: susceptibility factors of the victim; a confidential and trusting relationship between the victim and perpetrator; active procurement Undue Influence “IDEAL” Protocol of the legal and financial transactions by the perpetrator; and, monetary loss of the victim. Isolation There are additional subcategories for Dependency susceptibility and confidential relationship. Emotional manipulation and/or Additional factors that fall under the Exploitation of a vulnerability susceptibility category include: medical and Acquiescence; and psychological factors that contribute to impaired Loss cognition and lack of capacity of the victim; dependency on the perpetrator, which is often a by-product of impaired functional ability and Bennett Blum, MD, a psychiatrist, expanded capacity of the victim; isolation of the victim, on Singer’s model to create a model to which includes physical or emotional isolation; understand undue influence emphasizing the and, the victim’s knowledge and previous habits.

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persuasion that a suspect may exploit is that of Undue Influence SCAM Model reciprocity. The suspect may perform caretaking duties for the victim, such as driving to doctors’ Susceptibility appointments, filling prescriptions, or cooking Confidential Relationship meals. The victim often feels that he or she Active Procurement “owes” the perpetrator something. The victim is, thus, often taken advantage of by the person who Monetary Loss gains from the victim’s indebtedness. Influence becomes “undue” when the perpetrator exploits the victim’s dependency and trust for personal Undue influence is a type of elder abuse. financial gain. It is this trust and dependency Older women who are White and live alone are that gives the perpetrator the ability to steal the often considered to be the most likely victims of victim’s assets. financial elder abuse that is reported (National There are many potential “indicators” of Center for Elder Abuse, 1998). A widely-cited undue influence to bear in mind. These factors profile of a target for financial abuse is generally include both demographics that increase risk and a White woman over 75 years of age who is behavior changes such as: White women over living alone (Rush & Lank, 2000; Tueth, 2000). the age of 75 years of age, recently widowed Additionally, the victim’s ability to resist undue men and women, individuals who are influence has been noted to be lessened when geographically isolated, and individuals who the person or victim is dependent on the have had a significant or unexplained emotional caretaker or influencer. Spar et al., (1992) noted change, such as a marked depression and or that any debilitating mental or physical illness insidious memory loss or other cognitive resulting in dependence on caretakers will deficits. In terms of behavioral changes, a increase susceptibility to undue influence. comparison of the victim’s past spending habits Dependency can include physical dependence, with current habits is critical to assess. For such as food preparation, assistance with example, the victim that has lived modestly medications, helping with bill paying, throughout life but now begins to make large checkbook management, reading bank purchases and/or give large amounts of money statements, or taking the victim to the and gifts to a new “best friend” may be a victim physician’s office. Emotional dependence can of undue influence. Financial transactions that include emotional support and encouragement, are uncharacteristic of the victim may be another and information dependence can include marker of undue influence. For example, bank dependence on information, such as financial or records indicating many ATM transactions that legal advice. are not possible for a homebound older adult In the SCAM model the vulnerable or could be suspect, as would be an older adult susceptible individual also develops a allegedly performing on-line bank transactions confidential and trusting relationship with the but who does not own a computer. The purpose perpetrator. The victim’s trust is gained through of these transactions may be to transfer funds various tactics of persuasion, manipulation, and into “joint-accounts” that the victim and suspect deception. Some of these tactics come in the are both signors on, but is controlled by the form of social influence techniques, such as alleged influencer. Additional indicators may liking and reciprocity (Regan et al., 1971), and include changes in the victim’s will or trust that authority (Milgram, 1963), and at other times the are not consistent with a previous disposition, strategy may be to just keep the victim unaware and the absence of any third party advisers. and uninformed about the legal or financial Upon questioning the victim it is often transactions. These weapons of influence are determined that the suspect has been initiating utilized by the perpetrator to heighten the all of the aspects of the financial and or legal victim’s reliance and dependence on the transactions, including providing transportation perpetrator. For example, a common method of to the bank, hiring a notary or an attorney,

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printing out forms, etc. This type of active Summary of Clinical Models procurement can be used as evidence of undue In Chapter 2, we provide a summary of influence. Summary of Undue Influence Models Brandle/Heisler/Stiegel Singer/Nievod Model Blum IDEAL Model Bernatz SCAM Model Model Factors: Factors: Elements: Goal: 1. Isolation 1. Isolation 1. Susceptibility • Financial Exploitation 2. Dependency 2. Dependency 2. Confidential Typical Perpetrator 3. Creating Siege 3. Emotional Relationship Tactics: Mentality manipulation and/or 3. Active Procurement 1. Isolate from others 4. Sense of Exploitation of a 4. Monetary Loss and information Powerlessness vulnerability 2. Create fear 5. Sense of 4. Acquiescence 3. Prey on Fear/Vulnerability 5. Loss vulnerabilities 6. Staying Unaware 4. Create dependency 5. Create lack of faith in own abilities 6. Induce shame and secrecy 7. Perform intermittent acts of kindness 8. Keep unaware The Brandle/Heisler/Stiegel model describes potential risk factors identified by the courts in perpetrator behavior in cases of undue influence. cases of undue influence, including opportunity, Although psychologists will primarily be asked motive, unnaturalness of transaction, to assess older victims, knowledge regarding the susceptibility, and the use of unnatural devices. alleged influencer can be useful in determining In this chapter, we have emphasized clinical the potential presence of undue influence. The factors that psychologists can assess and influencer is often in the home close to the potentially describe in a report provided to the victim and may even be interviewed by the courts as evidence. The frameworks presented psychologist as a collateral source. differ in their specifics, but there are some In the Brandle/Heisler/Stiegel model, the important common elements to keep in mind influencer is described as a predator who targets while conducting an assessment. These include isolated elders, often in places such as factors that increase susceptibility of the victim, supermarkets and drug stores, and “grooms” the the presence of a confidential relationship, a person through an initial show of friendship and mechanism for fraud to occur, and monetary caring. Once trust has been established, the transfers that benefit the alleged influencer. influencer will use a variety of tactics to increase their power and control and diminish the control Writing About Undue Influence in of the older adults, including isolation, fear, Your Report shame, with intermittent acts of kindness. At the Undue influence evaluations include all of same time, the alleged influencer will work to the information that goes into a capacity keep the victim unaware of their intent and the assessment (purpose of evaluation, history of loss of assets. problem, medical, social, occupational history, neuropsychological testing, discussion of results, and financial capacity findings), as well as a

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