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Undue influence is a widespread and pernicious problem. While it can affect individuals at any age and under a variety of circumstances, it can be a particular problem in elder care, and unfortunately can in many cases appear in concert with other forms of elder abuse. Recognizing the signs of undue influence can make the problem easier to address, but there can still be a number of legal and administrative hurdles to face, depending on the specifics of the situation. In this blog post, we review some of the ways that you can recognize and address undue influence.
Everyone is subject to the experience of occasionally having a friend or family member try to talk them into doing something the persuaded person would not otherwise consider doing. Sometimes the person subjected to this persuasion resists; sometimes he or she may “go along to get along.” Similarly, the attempts at persuasion may be well-meaning, or they may be aimed at subverting the best interests of the individual to whom they are directed.
When these attempts at persuasion take place in the context of a relationship in which the person engaged in such attempts has significant power or leverage over the person they are trying to convince, the persuader may be said to be wielding “undue influence.” Courts have often struggled to define undue influence, as the American Bar Association (ABA) notes – but the general public has an interest in establishing at least a working definition under which undue influence can be recognized and addressed, as – several years after the cited article was published by the ABA – undue influence continues to be a pervasive problem in estate planning and particularly in its intersection with elder law. Consulting an experienced elder law attorney can be critical in identifying and addressing undue influence in these situations.
Those who have already watched a loved one succumb to undue influence may need no elaboration of its potential harm. However, delineating some of the most common harms caused by undue influence can make it easier to recognize both the signs that undue influence may be at work and the possible points for intervention – which include, but are not limited to, legal action.
An unscrupulous individual in a position of significant power over a vulnerable person can often do considerable damage before friends or family members develop concerns and attempt to intervene on the victim’s behalf. Consequently, one of the first steps someone will often take when they set out to exercise undue influence is to isolate their target so as to make it more difficult for others to notice what is going on. Many of the problems caused by undue influence stem from this initial step and depend to some extent on its success. Common examples include:
An individual may use undue influence in order to persuade a vulnerable person to change the terms of their Will, especially beneficiary designations, to benefit the person exercising the influence. In many cases, this specific problem may go unnoticed until the victim is deceased and the Will is read as part of the probate process. Challenging a Will in court can be a difficult undertaking, with no guarantee of success – and even if the challenge succeeds, this remedy can by definition do nothing to improve the final days or years of a testator who was prevailed upon to alter the terms of their Will through the exercise of undue influence.
Sometimes a caregiver or other person with substantial power over a vulnerable individual may want to take financial advantage right away, as opposed to (or in addition to) waiting until the Will is read. If the original source of their power or leverage over the vulnerable person stems from a durable power of attorney, the individual bent on manipulating the situation to his or her advantage may find this easy to do. Otherwise, the manipulator may use his or her position to seek to pressure the person into creating a financial power of attorney and naming the manipulator as the agent.
With or without seeking nomination as the vulnerable person’s agent in a power of attorney, a person seeking to exercise undue influence may manipulate an individual over whom they hold leverage into creating an irrevocable trust and naming the manipulator as the sole beneficiary. O.R.C. § 5804.06 specifies that a trust created under undue influence is invalid, but Ohio courts have set a high bar for proving undue influence and thus the formation of an irrevocable trust may be difficult to undo, even if friends and family develop suspicions after the fact.
The two central characteristics of undue influence are the power the influence holders have over the influenced (otherwise there may indeed be influence, but it is not “undue”) and the use of the persuasion to thwart the known wishes and judgment of the person influenced, to the advantage of the person exercising the influence (otherwise this person is merely giving advice, even if it may be of dubious value). The intersection of these two characteristics helps to “localize” the areas in which the effects of undue influence are likely to emerge. Some signs that friends and family may want to watch for include:
No single sign or symptom is necessarily decisive; rather, it is important to look at the total picture, especially in relation to other events that may be taking place in the life of someone about whom you are concerned.
Legal actions stemming from undue influence unfortunately are in most cases attempts to get documents invalidated; occasionally they may aim to get a fiduciary removed and replaced. These actions can typically be taken by an “interested person,” but the persons Ohio law defines as “interested” may represent a somewhat limited group. Additionally, there can be some circumstances that lead to challenging the validity of estate planning documents to verge on the impossible; for instance, O.R.C. § 2107.71 specifies that a Will that has been validated at the testator’s request, during the testator’s lifetime, by an Ohio probate court, cannot be contested even by a party otherwise authorized by law to initiate such a contest. Difficulties such as these underscore the importance of recognizing undue influence so as to address them as early as possible, so consider taking proactive steps by speaking with an estate planning attorney to discuss options as soon as you develop concerns.
In reality, the reassuring and intimidating truth is that one of the most effective means of addressing undue influence, in many cases, may be simply showing up. Taking an active interest and making an extra effort to be regularly present in your loved one’s life at the first sign that they are vulnerable – ideally before there are signs that undue influence has been applied – can put you in a strong position to protect someone you love from the harms caused by undue influence.
If you suspect that someone you love may be subject to undue influence, or if you have been taken by surprise at the contents of estate planning documents that you now suspect were written or changed under undue influence, then you may have legal options. The options available will depend in part on the stage of undue influence at which suspected manipulation has been discovered, and in part on the types of actions a vulnerable person has taken on the basis of that influence.
To learn more and review your options under Ohio law, schedule a consultation with an estate planning attorney at Rhodium Law. Call 216-699-8145 today to begin.
