Attorney Steve – Financial Elder Abuse Information Series
Bonus Materials: Click the picture above to hear our Vondran Legal Hour (husband and wife podcast) on the topic of financial elder abuse issues and general legal overview. We think you will find it very informative.
Financial elder abuse is a growing financial crime and civil matter. Our office has been fighting for the rights of elder victims for years, and we can help whether the abuse results from abuse from kids, financial planners, attorneys, real estate brokers, car dealers, RV dealerships, nursing homes, those with financial powers of attorney or others. There are so many different types of ways this crime can be committed against persons over 65 as to defy a clear explanation. Senior citizens are usually trustworthy and used to placing their trust in the hands of licensed professionals such as accountants, mortgage brokers, life insurance agents, car dealerships and even their own kids. But when this trust is violated, financial elder abuse is often one of the claims that must be looked at and California is one of the leading states to step up and protect seniors through legislative efforts. This blog discusses the important concept of “undue influence” and how in some cases it might be used to help “shift the burden of proof” to the Defendant in the case to make them prove the fairness of the transaction at issue. This can help a Plaintiff win a civil case where the elder may not have a clear recollection of events, or is suffering from dementia or altzheimers. Let’s start this blog with a discussion of what the legal definition of “undue influence” is.
California Welfare & Institutions Code Section 15610.70
Cal. W & I code section 15610.70 states:
(a) “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. In determining whether a result was produced by undue influence, all of the following shall be considered:
(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.
(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.
(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:
(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.
(B) Use of affection, intimidation, or coercion.
(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.
(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.
(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.
As you can see, whether or not “undue influence” can be shown in your elder abuse case will depend upon a weighing of all the facts. But if shown, it can create a “presumption” that the elder was taken advantage of. Usually this will require that there be a “confidential” or fiduciary duty between the parties.
Examples of “undue influence” and “confidential relationship” in CA case law
The key case to look at to see if you can “shift” a burden of proof in a financial elder abuse case and basically get a “presumption” of bad faith taking of personal or real property is Sparks v. Sparks, 101 Cal. App. 2d 129, 135-36, 225 P.2d 238, 242 (1950). This California court of appeal case held:
Will a showing of “undue influence” shift the burden of proof in California financial elder abuse cases?
It can. There is legal authority on this point as evidenced in an excellent article about Financial Elder Abuse litigation strategies published by the Los Angeles County Bar Association. In this article they point out:
So where the elderly Plaintiff is coerced or pressured into signing, and not acting on their own independent investigation, there could be a finding that the advisor unduly pressured or influenced the elder resulting in “taking, appropriating, secreting or retaining real or personal property to a wrongful use with the intent to defraud. Those “assisting” the elder abuse can also be held liable.
Contact a Senior Care financial elder abuse law firm
We have handled many different types of financial elder abuse cases from real estate fraud by an attorney and broker, to insurance broker churning of life insurance accounts, to car dealership fraud, and predatory lending. Contact us to discuss your case. In many cases we can offer to take your case on a full or partial contingency fee case. We know this is a tough time for you, and we are here to help right the wrong. Call us at (877) 276-5084 or fill out the contact form below to have one of our financial elder abuse lawyers contact you, usually within the hour. Please make sure to leave your best phone number!!
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