The subject of undue influence has long been an issue for attorneys and for the courts. Many states have statues referring to undue influence in their civil code or probate code and in some instances, criminal code. Case law provides further guidance in undue influence matters. Allegations of undue influence are commonplace in contested matters: contracts, wills, trusts, and guardianships.
However, undue influence is no longer a matter confined to the legal arena due to the emergence of elder abuse in the late 1970s. In response to congressional testimony and research studies describing elder abuse, legislatures across the country passed reporting laws. All states now have reporting laws and most are mandatory for professional groups and others working with elders. Reports are made to county level Adult Protective Services (APS) agencies. Once APS professionals receive the reports, they are required to investigate the allegations and if substantiated, take steps to protect the individual.
The incidence and prevalence of elder abuse is numbing. One in 10 seniors over the age of 60 living at home are subject to abuse (NCEA, 2017; Lachs and Pillemer, 2015), one in five over the age of 65 are subject to elder financial exploitation (Public Policy Polling, 2016).
Undue influence, a form of psychological abuse is a major factor in financial exploitation whether it is by friends, family, caregivers, professionals, or telemarketers. It is also prevalent in sexual abuse and when individuals move in with elders who own their homes.
A commonly accepted definition of undue influence has been elusive. It is, however, usually recognized as a process whereby one person manipulates the trust, fears, dependency, and vulnerabilities of another for personal gain. Fraud, duress, threats or other types of pressure often accompany it (Nerenberg, 1996; Quinn, et al., 2010). Undue influence occurs behind closed doors which makes it difficult to detect. It is usually discovered after it has taken place although there is increasing recognition of the process at the time it is happening. People with full capacity can be subject to undue influence as with domestic violence, cults, hostage situations, prisoners of war, and even totalitarian regimes. It is, however, easier to unduly influence someone who has mental capacity impairments (Estate of Olson, 1912).