When it comes to helping clients who may be the victim of undue influence, it can be difficult, if not seemingly impossible, to recognize the signs of its existence. This is mostly because undue influence is a process rather than a single event, and one that occurs in private between the influencer and influenced person. While undue influencers can exert their will through outright threats, more often than not, their influence is through subtle manipulation. Because of these factors, cases of undue influence rarely have clear, direct evidence. As such, litigators tend to rely mostly on circumstantial evidence to prove its occurrence.
Despite these difficulties, there are warning signs that an estate planner can know when dealing with clients. While undue influence can happen to anyone, it tends to occur with vulnerable individuals—individuals who are isolated, unable to care for themselves, or are mentally or physically incapacitated. To better identify and protect these types of clients, let’s break down their vulnerabilities (and the subsequent warning signs) that attorneys should keep an eye out for:
- Isolation from family and friends – Isolation can be more complicated to detect than one might think. Physical isolation can result from seemingly natural causes and conditions (living away from family, physical incapacities making it difficult to travel, etc.), or can be imposed by another individual (caretaker who impedes a client’s ability to see their family). Isolation can also exist even when a client regularly interacts with others. Known as chaperoning, isolation can occur due to a lack of privacy when the vulnerable individual is constantly accompanied by another. This leads to the next point.
- Dependency on a caregiver – A client who heavily relies on another individual for personal, financial, and/or general care, is usually more vulnerable to undue influence due to lack of personal agency. Due to the inherently disproportionate power structure in these relationships, it becomes very easy for the individual with more power to abuse it. Attorneys should be on the lookout for whether these clients are soliciting your advice themselves, or if it is the intention of their caregiver. Look at factors such as who contacted, arranged for, and communicated with you. Did the client come on their own? Did the caregiver want to continuously speak on the client’s behalf? Did the caregiver insist on being present during your meeting with the client? Was the client able to articulate their own estate plan, or were they always looking to their caregiver for an explanation? Did they seem afraid or overtly persuaded by their caregiver? All these signs may indicate the presence of undue influence.
- Diminished mental capacity – Diminished capacity refers to one’s inability to have the required mental capacity (being of sound mind) to understand the nature of the legal issue for which council is being sought, understand the documents or legal advice provided, or execute a legal document. This is common among aging clients, clients affected by dementia or Alzheimer’s, or clients with some other incapacity. Attorneys can look for red flags, such as the inability to recall their property or identify their relatives or heirs, communication and comprehension issues, agitation, disorientation or confusion, and calculation problems.
It’s important to note that a combination of these warning signs usually exists in cases of undue influence. Attorneys should be wary and act accordingly when two or more of these warning signs occur together.