The Attorney-Client Relationship is alreadya relationship of confidence therefore it is already predisposed to undue influence criteria. The attorney is aware of this are you? is your vulnerable aging parent? Beware of the Wolf in the Sheep's Clothes.
State court decisions do define what undue influence is and how it occurs. Those definitions vary from state to state, but there are some common factors that the courts consider in deciding whether a will or deed was made as a result of undue influence. The courts may label or express these factors in different ways, but in general they look at:
• The relationship between the alleged influencer and alleged victim. Were they family? Was the alleged influencer providing care to the older person?
• Was the alleged influencer a fiduciary (e.g., an accountant, clergy member, financial or business advisor, or lawyer) who owed a special duty to the older person?
• The alleged victim’s vulnerability to undue influence. Was the older person experiencing illness, dementia or other cognitive impairment, grief, or sleep deprivation? Was the older person affected by medications?
• The alleged influencer’s opportunity to gain control. Was the older person isolated, either before the alleged influencer became involved in the elder’s life or as a result of actions by the alleged influencer?
• Were family members or friends prevented from seeing or talking to the older person (e.g., by being told that she was sleeping or feeling unwell each time they called)?
• Was the older person prevented from seeing family members, friends, neighbors, or others? Did the older person believe things that the alleged influencer denies (e.g., that they were or soon would be married)?
• Whether the alleged victim’s decisions were the outcome of the undue influence. Were decisions allegedly made as a result of the influencer’s control inconsistent with the older person’s decisions? Did the older person who suddenly made or changed legal documents have independent legal advice or did the alleged influencer choose the lawyer and sit in on all the meetings with the lawyer?
• A person who has decision-making capacity can be unduly influenced, but it is easier to commit undue influence on someone who has diminished capacity. • Generally, a victim of undue influence will not recognize what is happening and will side with the perpetrator.
Undue influence undermines consent. Even if the victim has capacity, a decision made as a result of undue influence is neither knowing nor voluntary.
Undue influence is a process by which control over the victim is gained and financial exploitation is committed.