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).
An Example of Undue Influence: The Brooke Astor case
The late Brooke Astor – New York City philanthropist (and the co-author’s grandmother) – was subject to abuse and exploitation through undue influence by her only child, Anthony Marshall, who isolated and psychologically manipulated her to take control of assets, including millions of dollars she had bequeathed to New York City charities. Mrs. Astor was vulnerable due to her physical and cognitive impairment, dependency, and isolation.
Mr. Marshall had authority. He had a health care proxy which gave him legal control over Mrs. Astor’s health care and living situation and he had legal authority over her finances including gift giving to himself. In the 1980s Mrs. Astor had hired her son to manage her finances: he held her power of attorney, which was revised several times. In a May 18, 2000, executed version Mrs. Astor’s initialed the following clause, “This power of attorney specifically authorizes the attorney-in-fact to make gifts on the principal’s behalf to the principal’s family members, including any family member acting as attorney-in-fact, and to charity.” Mr. Marshall seemed to believe that, irrespective of his mother’s needs and wishes, he deserved and could take whatever she had. This included her money – and her wellbeing.
Mr. Marshall employed several tactics, including isolation and manipulation. Mr. Marshall restricted his mother to her apartment, save visits to the doctor. Doormen in her apartment were instructed to turn away Mrs. Astor’s friends who were not on Mr. Marshall’s authorized short list. Staff, most loyal to and protective of Mrs. Astor, were fired. New attorneys were hired; her longstanding firm was fired. Staff were told not to call 911 before calling Mr. Marshall. Mrs. Astor went from the limelight – center stage in New York City and, more importantly, as the lead actor in her own life – to being “gaslighted” by her own son. Through undue influence, he psychologically broke her down into believing she was going broke. The Manhattan District Attorney characterized his actitons as a “calculated scheme to defraud.”
In early 2002, while Mr. Marshall was cutting back on his mother’s living expenses, he sold her favorite painting – “Flags, Fifth Avenue, 1917” by Childe Hassam – which she had bequeathed to the Metropolitan Museum of Art, as chronicled by The New York Times (and Astor timeline). The sale realized ten million dollars, two of which Mr. Marshall kept as a “commission.” On hearing of the sale, Mrs. Astor, who had been led to believe she was running out of money, asked, "Now, can I buy dresses?"
Mr. Marshall used his power of attorney as a weapon and a shield – as chronicled by large transactions, including a $5 million gift to “help heal the rift” (between Mrs. Astor and Mr. Marshall’s third wife) and Mrs. Astor’s property in Maine valued at over $5 million (gifted to Mr. Marshall, then transferred to his wife six months later). Emboldened by successful gain of such sums, Mr. Marshall escalated his insidious, serial exploitation by having his mother “sign” three codicils (using three lawyers) that transferred tens of millions of dollars to his control.
“Flags, Fifth Avenue, 1917” was but one of too many incidents that raised red flags and compelled Mrs. Astor’s greater circle of support to act and help save her through a petition for guardianship, which was awarded. The allegations, publicity, and pre-trail guardianship proceedings prompted the Manhattan District Attorney to open up a criminal investigation, which concluded in a six-month trial and conviction of Mr. Marshall and one of Mrs. Astor’s attorneys.
Mrs. Astor knew she was subject to undue influence, as evidenced by testimony during Mr. Marshall’s trial. As reported by The New York Times, according to an attending nurse, Ms. Noble, Mrs. Astor said in February 2004, “‘I give up. They [including Mr. Marshall] get all that they want. I’m so gaga, what can I do?’” In March, during the signing of a codicil, Mrs. Astor attempted to defend herself: “‘I won’t be pushed into any business, do you hear me?’ Ms. Noble said that Mrs. Astor told her son.” and “…when the Marshalls visited the apartment, Ms. Noble said that Mrs. Astor told her: ‘What do they want? Tell them I will pay them to leave.’”
Happily, a guardian of the person, a very dear friend, was appointed to oversee Mrs. Astor’s medical and physical care. She restored Mrs. Astor to her former life style and reinstated devoted staff members. Mrs. Astor’s finances were put under the control of a bank accustomed to dealing with high wealth.
Elders of all incomes and walks of life are subject to undue influence that can rob them of the self-worth, net worth and even their lives
One State’s Approach to Defining Undue Influence
Probate Courts see the most undue influence cases in civil courts in matters such as petitions for guardianships and conservatorships, trusts conflicts, and disputed wills. In California, there have been several responses to the lack of a definition of undue influence in the Probate Code – even though the term is mentioned over 25 times. In 2009, a research project, funded by the Borchard Foundation on Law and Aging, was initiated in order to explore the topic (Quinn, et al., 2010). The impetus was Probate Code §1801(b) which states in part that a “conservator of estate may be appointed for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence…” Surprisingly, the review of state law revealed that the only definition of undue influence in state law was California Civil Code §1575 which had been enacted in 1872, well over a century earlier. Of course, case law through the years provided guidance to courts and attorneys.
A second response to the lack of a modernized definition was landmark legislation defining undue influence that took effect January 1, 2014. The new definition is mentioned in Probate Code §86 and detailed in Welfare and Institutions Code §15610.70. The new definition states: “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and resulting in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:
- Vulnerability of the victim.
- Influencer’s apparent authority.
- Actions of tactics used by influencer.
- Equity of the result.
The law spells out examples of each of the four factors. It also requires that judges and juries consider the law when making determinations about undue influence. The four factors are weighted equally, which means that no one factor is more important than another. In addition, all four are not required to determine if undue influence has occurred. In fact, a judge or jury could decide that undue influence has taken place where the four factors are not present. While this is highly unlikely, it is possible because the new definitions and factors merely require that the judge or jury consider them.
Developing a Screening Tool
Adult Protective Services (APS) staff are first responders in an elder abuse case and hence have the most exposure to undue influence of any other professional group. For that reason, the Borchard Foundation Center on Law and Aging funded a second grant proposal in 2015 aimed at developing a screening tool for undue influence that APS staff would find easy to use, would be brief, would contain plain English, and would be consistent with the recently enacted definition of undue influence.
The study did result in a screening tool that is now being used to educate APS staff in California. Attorneys who reviewed the tool indicated it could also be useful for police investigators, estate planners, and quite likely professionals and the public in other states. The screening tool and the final report to the funder are available on the website of the California Elder Justice Coalition (Quinn et al.,2016).
It appears that undue influence, a feature of the psychological abuse of elders and dependent adults, is becoming less mysterious. This is a result of a confluence of factors: the legal experience with undue influence, the greater prevalence of elder abuse including psychological abuse, and the current sophistication in the field of psychology about the dynamics of influencing. No doubt there will be further developments in state law, in research applications, and in practice and policy.
Senior attorneys are in an ideal position to assist in the development of the field of undue influence. Due to legal experience, life experience, and knowledge of the human condition, their vantage point is of high value and they have much to give if they choose.
In the United States, ten thousand people celebrate their 65th birthday every day. The “Gray Tsunami” continues to unfold; it will culminate in people over 65 constituting at least twenty percent of the US population by 2030 (2010 Census). In recognition of this reality, May is designated Older Americans Month every year and World Elder Abuse Awareness Day takes place on June 15. Clearly older adults and the abuse they suffer, including undue influence, is coming to the fore.