How does Elder Financial Abuse and Undue Influence occur?
Is there a Law against elder financial abuse? The answer is a definite YES! It's called Undue Influence. This Law was judicially introduced about 100 years ago to effectively deal with elders being taken advantage of, and it's almost always the key theme in financial abuse cases. There is no precise version of Undue Influence, but there are many different examples, we've included in the following two Links to recent cases and media interviews, plus a few descriptions of how it can occur.
Of the numerous examples, several possible descriptions follow:
- an act of persuasion that overcomes the free will and judgement of another
- the improper use of a Power of Attorney
- an elderly person because of diminished mental capacity may not realise funds are being withdrawn from their bank accounts until they're almost depleted
- it may include acts of continuing to badger an elder person where they have refused to consent until they eventually give in
- or there may be a situation where there are threats to end a relationship in order coerce an elderly person
- Undue Influence exists where a contract has been entered into as a result of pressure
- it differs from duress where force may have been intentionally used or there was a threat to use force
Here are two relevant recent media interviews, they are brief and certainly worth watching:
- Elderly Couple Interviewed; Youngest Son Took Their Assets - An NBN Television Mornings Show, in Australia, called Jump In, aired this interview live about Elder Financial Abuse on October 6, 2014. Watch Video
- Mickey Rooney Interview; He Tells His Story of Financial Abuse - At the age of 90, Mickey Rooney bravely shared his personal story of financial abuse with Members of Congress and the world. He spoke of the shame and humiliation. This interview was aired on NBC News in the US: Watch Video
It is worth noting, if an elder person is subjected to pressure to sign, they may have a cause of action in equity to have the contract set aside. That is, where a contract is found to be entered into as a result of Undue Influence, this will render the contract voidable, or if transactions have been imposed upon weak and vulnerable persons, that can allow the transactions to be set aside. This is one reason why we suggest it's important to work with your Lawyer, one who has experience in Elder Law.