Financial Scams—Obtaining Money Through Undue Influence
The concept of undue influence plays a starring role when it comes to cases of financial abuse among seniors. In nearly all of the cases, the victim had been taken advantage of through means of coercion, manipulation, or trickery, and because of this, they lost their property and money to the scammer. In layman’s terms, it’s getting money in a way that isn’t right.
The key theme of undue influence is “taking advantage” of someone in a financial abuse case, and this can be done by strangers, friends, or even family members. Under California law, for example, undue influence may be presumed to have taken place when a “special relationship” exists between the senior and the perpetrator. However, coming to that conclusion as to whether or not such a relationship exists involves questions of fact, and it is dependent on the various circumstances unique to each case. A relationship like that can form due to close proximity of perpetrator to victim, and they could be caregivers, nurses, friends or relatives—people who are so involved in the life of the senior that the special relationship exists. Once that special relationship is established, it ignites the presumption that undue influence has taken place.
What’s important about the presumption is that once it’s established, it shifts the burden of proof onto the defendant to prove that a situation of undue influence did not occur.
Another important factor when deciding whether or not undue influence has taken place is a determination regarding the adequacy of consideration that was given to the elder by the defendant. In the process of making their determination, the Court will look at things like degree of isolation, failing health, and mental capacity of the senior and what benefits, if any, the defendant provided for them.
One final factor is whether or not the elder got independent legal advice before making a power of attorney or finishing a conveyance of real or personal property. In a lot of cases of financial abuse of the elderly, the wrongdoer didn’t take the necessary steps to have the transaction reviewed by an attorney.
It should be known that just one of these factors alone is not really going to be enough to prove the elder was a victim of undue influence and that the conveyance of real or personal property should be undone. Although, in combination, these factors can often be enough to prove the undue influence. In that case, the court would be convinced that power of attorney should be nullified, or that the transaction, conveyance, or contract be rescinded with the property or funds that were wrongfully obtained being returned to the senior.
There are a lot of ways to help when undue influence has been used to obtain property or funds, and it’s important to seek the appropriate legal assistance if you or a loved one have a been victimized by undue influence.