Ellis Hanson was once a brilliant engineer who was partially responsible for the development of computer typesetting that made him a wealthy man upon his retirement. He and his wife, Velta, purchased their retirement home in Naples Florida and he did well in the stock market, investing his money well. By the early 2000s, however, his cognitive abilities were declining, and the couple turned to a banker to handle their finances. On September 30th 2008, Hanson pulled a small piece of paper out of his pocket and stared at it blankly. Not understanding what it was, he asked his wife to look. It was a receipt for a $260 lunch in Naples.
Velta Hanson was surprised. Her then- 84-year-old husband, a brilliant engineer in the early stages of Alzheimer’s disease, had no recollection of eating there hours earlier. Velta Hanson hired a private investigator. But days before receiving his report, she found a letter revealing her husband had written a $10,000 check to a friend of two decades, Alma Teti. That was the day she asked her husband if she could take over their finances. It turned out that was just a fraction of what Ellis Hanson had given Teti. In addition to the lunch, there was also more than $1 million in checks from 2006 to 2008, nearly $85,000 in jewelry since 2005, including a $26,000 blue stone ring for her birthday, and thousands in expensive lunches, champagne and drinks.
In 2009, the couple sued Teti, alleging exploitation of a vulnerable adult and conversion of personal funds, illegally depriving the Hansons of their property. Florida law defines a vulnerable adult as someone 18 or older whose ability to perform the normal activities of daily living or provide his or her own care or protection is impaired due to a mental, emotional, long-term physical or developmental disability or dysfunction, brain damage or infirmities of aging. A three-day jury trial resulted in a judgment of over $2 Million against Teti.[1]
The means by which Alma Teti committed her offense is often referred to as Undue Influence. Undue Influence is the misuse of one’s role and power to exploit the trust, dependence, and fear of another to deceptively gain control over that person’s decision in a particular matter. Along with capacity and consent, Undue Influence is a key concept in elder law. Capacity and consent relate primarily to an individual’s abilities to understand and process information in order to take action or to make decisions. Undue Influence focuses more on the relationship between the individual and another person, coupled with that person’s opportunity and power to manipulate the vulnerable person’s thoughts and actions. An older person may be more vulnerable to Undue Influence because he or she has diminished capacity, or the person has become isolated from trustworthy family and friends.
The legal standard for Undue Influence has been defined as influence that amounts to deception, force or coercion that destroys a person’s free agency.[2] Undue Influence arises most predominantly in probate, trust and estates, power of attorney and guardianship matters. Undue Influence typically is not itself a crime, but it can be a means for committing a crime.
Undue Influence can take on other, more subtle behaviors as well. For example, the following may constitute Undue Influence if the resulting actions deprive an older person of their free agency in making a decision:
- An adult child threatens to stop visiting her elderly mother unless she gives her the silver dinnerware that she had been promised.
- A new companion convinces an older man to give her power of attorney because his children never come to see him and don’t care for him like she does.
- A representative of a religious ministry regularly visits an elderly shut-in and convinces her to make a large donation to the ministry after he assures her that “God will bless her abundantly” if she makes a sacrificial gift.
What’s important to remember about Undue Influence are the position of power that one individual may hold over another because of the relationship between them, and the opportunity to misuse that power through manipulation. Here are a few tips to guard our elderly loved ones against Undue Influence.
- Avoid social isolation. When an older person has an active social life around lots of family and friends, the influential power of someone wishing to manipulate them is minimized, and the opportunities to do so are less available.
- Be aware of cognitive decline. Diminished capacity increases the vulnerability to Undue Influence. Maintain an attitude of honor and avoid patronizing language or tones such as baby-talk while honestly discussing any concerns you have with your older loved one.
- Adopt a family code of honor. All of the world’s great wisdom traditions have honoring parents and the elderly as a core tenant. It’s time to practice it. What is your family’s honor code?
Undue Influence is a very complex legal concept and should not be lightly alleged. If you believe that a loved one is being unduly influenced, contact an attorney licensed in your state with expertise in elder law.
[1] NewsNaples.com; Judge rules family friend exploited, took $2 million from Naples man with dementia, By Aisling Swift, Saturday, July 23, 2011
[2] Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers