Elder financial abuse generally occurs when a caregiver, family member or friend obtains property (real or personal) that once belonged to the elder. The manner in which these properties were obtained usually involves undue influence.
“Undue influence” has been defined by a myriad of statutes and case law, and varies somewhat among the states. In California, for example, undue influence is generally used in two contexts: (1) making a contract or conveyance, and (2) applying certain common law presumptions (See: Elder Law Litigation: Remedies for Financial Abuse, Continuing Education of the Bar/2005).
California Civil Code Section 1575 describes undue influence in contract and conveyance cases:
“The use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him or her, of such confidence or authority for the purpose of obtaining an unfair advantage over him or her;
Taking an unfair advantage of another’s weaker state of mind; or
Taking a grossly oppressive and unfair advantage of another’s necessities or distress.”
The common law, and Civil Code section 1575, discuss presumptions of undue influence that exist, primarily when a fiduciary or confidential relationship occur between an elder and the alleged perpetrator. Undue influence results when the perpetrator participates in obtaining an undue profit or unfair advantage over the elder.
What this presumption means is that the burden of proof is shifted to the defendant to prove the nonexistence of the presumed undue influence or fraud (See: Continuing Education of the Bar, supra).
The special relationship involves questions of fact and depends on the circumstances of each case. Such a relationship can be established by the close proximity of the perpetrator to the elderly victim. Caregivers, nurses, friends or relatives can all, potentially, be so involved in the elder’s life that a special relationship exists to trigger the presumption that undue influence occurred.
Another factor in determining whether undue influence occurred, it is a determination as to the adequacy of consideration that was given to the elder by the defendant. In making such a determination, the Court will consider the degree of isolation, failing health, and mental capacity of the elder and what benefit, if any, the defendant provided to the elder.
One more factor is whether or not the elder obtained independent legal advice before completing the conveyance of real or personal property. In most cases of elder financial abuse, the perpetrator did not take steps to have the transaction reviewed by an attorney.
One of these factors, by themselves, is probably insufficient to show that the elder was subjected to undue influence and that the conveyance of real or personal property should be undone. However, a combination of these factors can be enough to prove undue influence and to convince the court that the transaction, conveyance or contract should be rescinded and the property returned to the elder.
Many remedies exist when undue influence has been used to wrongfully obtain property. California’s Elder Abuse and Dependent Adult Civil Protection Act provides nearly every remedy under the sun, and a civil action can request that the defendant be liable for attorney fees, costs, and punitive damages, as well as all special and general damages.
George F. Dickerman is an elder law attorney in Riverside County, California, practising law for 23 years. To learn more about elder law issues, and to subscribe to a free newsletter that provides valuable information on how to assist your family members or loved ones, please visit
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