Under California financial elder abuse law, you must prove four elements to establish undue influence: (1) vulnerability of the victim, (2) apparent authority of the wrongdoer, (3) actions and tactics of the wrongdoer, and (4) an inequitable result.Two of these elements stand out over the rest: vulnerability and actions and tactics.
Actions and tactics refers to the actions taken by the wrongdoer: what did the wrongdoer do to control the victim? Control is the name of the game. Every person who exercises undue influence will engage in behavior designed to control the victim. Undue influence is the replacement of the victim’s intent with the intent of the wrongdoer—it takes control to replace someone’s intent.
Ways The Wrongdoer Can Control a Victim
How do you control a victim? You start by controlling their food, medication, medical appointments, and any other necessaries of life. If a victim is dependent on another person to stay alive, then control can be easily exercised.
A wrongdoer can also control the finances of a victim, taking over financial accounts, real estate, income sources, and all bank statements. If a victim must please a wrongdoer to get their own money, then control can be easily exercised.
Control can also include making changes to estate plans or financial arrangements in haste, at inappropriate times (such as when the victim is hospitalized), or in secret so no other family members are aware of the changes.These are all telltale signs of undue influence.
Finally, control can be used to find a new estate planning lawyer for the victim, taking the victim to the lawyer’s office, and communicating with the estate planning lawyer to ensure the changes the wrongdoer wants are implemented.
Proving Undue Influence Claim
These facts will often tell a compelling story of undue influence—meaning they become important to your undue influence case.
Vulnerability of the victim refers to the victim’s mental condition at the time the undue influence occurs.People who have a mental deficit, such as dementia or Alzheimer’s, are more likely to be the victims of undue influence.The same can be true of anyone who has had a stroke, is suffering a serious illness, or has recently suffered from a tragedy (such as the death of a close family member). Vulnerability is an important element because it demonstrates whether the victim could be easily manipulated or not.
When you have vulnerability plus control, you likely will have undue influence.These are not the only elements for proving undue influence, but they are the most important elements by far. For a free consultation on your specific case, contact the experienced elder abuse attorneys at Albertson & Davidson now.
