You discover your parent made large gifts to a person that threatens your parent’s economic security. You learn an elder friend’s fiduciary (trustee, attorney-in-fact) performed acts that conflict with your friend’s personal or financial interests. If you believe a friend or loved one is a victim of undue influence, taking action is complicated.
“Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. Complicating the matter of determining undue influence is that undue influence is often hidden by a wrongdoer. Complicating the matter further is that undue influence occurs whether or not an individual has mental capacity.
Protecting the Vulnerable
A conservatorship is legal proceeding that can be used to protect a vulnerable adult (a proposed conservatee) from undue influence. A conservator’s appointment can deprive an individual of substantial liberty interests to govern her own affairs. Because the courts do not take away a person’s right to govern her own affairs easily, establishing the grounds for a conservatorship can be challenging.
A conservatorship petition requires allegations that a person is unable to provide for his personal needs, substantially unable to manage his financial resources or to resist fraud or undue influence. From the perspective of a proposed conservatee, a person’s act in filing a conservatorship petition could be viewed as hostile. Failing to be appointed as conservator may have unintended consequences such as retaliation by the vulnerable person.
Gathering Evidence
A person seeking to establish the conservatorship may need to discover “circumstantial” (indirect) evidence establishing abuse that might include: 1) rapid loss in value of the vulnerable person’s financial accounts; 2) claimed wrongdoer trying to limit access to the victim; or 3) the vulnerable person’s receipt of poor physical or emotional care.
If a petition for conservatorship is set for trial, the court will assess all the relevant evidence to determine if there is adequate proof that the victim’s free will has been altered by improper, undue influence. Often, expert medical evidence will address any mental impairment that could make the alleged victim more vulnerable to the influencer. The presentation of evidence at of undue influence at trial can be time consuming and detailed.
A conservatorship is only one legal proceeding to protect an adult from undue influence. Also, proceedings for claims for elder financial abuse, recovery of property and other actions can be filed, depending upon the circumstances. If you have concerns for a vulnerable parent, relative or friend, consult with your attorney to explore what legal options, including a conservatorship, may be appropriate for your situation.
How Our Orinda Trust Attorneys Can Help
At Business Estate & Tax Attorneys, P.C., our focus is on helping you achieve peace of mind. Our Orinda trust litigation lawyers will provide you with practical advice to guide you if you have been a victim of undue influence. If you would like to take advantage of the benefits of our help, contact us online or give us a call at (925) 317-3467 to receive a confidential consultation.
Disclaimer: The information in this article is for general purposes only, and it is not intended as a substitute for legal advice.
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