Aging is the one inevitable we’ll all face in our lifetimes.
Our elderly population is rapidly growing as Baby Boomers enter seniority. According to the U.S. Census Bureau, our country’s 65-year-old and older crowd has grown by over a third in the past ten years. This means that almost fourteen million people that have gained senior citizen status since 2010. Under California Welfare and Institutions Code § 15610.27, an elder is “any person residing in [California], 65 years of age or older.”
For this growing group of seniors (and for everybody else), estate planning is vital. Due to their age, among other factors, the elderly can be especially susceptible to influence by outside forces and ideas. In the context of estate planning, when these “forces” are really another person, this may stray into the realm of undue influence.
At its core, undue influence is a form of abuse. It’s the act of pressuring someone through emotional, physical, or psychological means to gain a benefit that would not have been secured otherwise. In estate planning this is often seen in adult child caretaker–elderly parent relationships as a means to increase inheritance amounts or receive specific gifts, change terms of distribution, or even disinherit other heirs.
Defining and Identifying Undue Influence
According to California Welfare and Institutions Code § 15610.70, undue influenced is broadly defined as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” Under California Probate Code § 86, individuals are extended this protection from undue influence in estate planning as well.
Undue influence can be characterized by four key elements: (1) vulnerability, (2) authority, (3) actions, and (4) equity of the result.
(1) Vulnerability of the victim includes lack of capacity as defined by illness, age, cognitive function, but also education, emotional state, injury, isolation, and general dependency on the influencer/abuser. This is especially relevant if there’s a reasonable assumption that the abuser should have had knowledge of or was proven to have knowledge of such vulnerability.
(2) Authority over the victim by the influencer, or the power that the abuser holds over the victim, namely as a caretaker in some form (ex: family member, healthcare provider, or fiduciary).
(3) Actions of the influencer, such as the use of affection, coercion, intimidation, control over interactions with others, and limited access to medication, information, sleep, or food.
(4) Equity of the result, or the impact that such undue influence by the influencer had on the victim.
It’s important to note that this is different from duress. Duress entails specific abusive acts such as the threat of and/or action of serious bodily harm or death, while undue influence is more broadly defined by fear of a negative outcome. Instances of undue influence are based on perceived threats by the abuser to the victim, which makes it difficult to both identify and prove.
To clarify, an adult child simply asking their parents to include a specific gift or term in their estate plan for such child’s benefit is not undue influence, but to incorporate the manipulation tactics as described above by an adult child caretaker may be a different story.
Considerations to Avoid Undue Influence
As our parents age, they often require more care than they’re used to. We may help them navigate doctor’s appointments, finances, and daily tasks such as cooking or cleaning. Sometimes our elderly parents may even live with us and rely on us completely. If you’re an adult child caretaker of someone interested in estate planning, it’s only natural to want to help them with this process as you do with most other things. In this case, however, it’s important to have boundaries to avoid instances and accusations of undue influence.
An adult child caretaker may help their parents by inquiring about attorney’s services and fees, assisting in scheduling, even driving them to the office. After this point, however, the last place they need to be is in the meeting with their parents and the attorney. Being an heir to an estate does not mean entitlement to privileged information during the planning process. Plus, as a caretaker, our elderly parents are reliant on us and susceptible to our undue influence. Even just the presence of an authority figure may influence their word choice and decision-making. It’s ultimately more productive for both the clients and their attorney to have complete privacy.
Accusations of undue influence from other heirs, even if they’ve been disinherited, may ultimately land your parents’ estates in court. Claims of undue influence are one of the most common reasons that wills and/or trusts are contested, and this would be counterproductive as the goal of proper estate planning is to avoid probate court after your death. We care about our aging parents and want them to have peace of mind knowing their estate is in order, which is why creating boundaries as a caretaker in this context is so important.
If you believe that you or a loved one are being unduly influenced or have experienced duress, please consider contacting LA County Adult Protective Services (APS) for guidance.
The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. Brittany Britton is licensed to practice law in the state of California only.