Undue Influence: An Issue for Everyone
Press stories have highlighted “undue influence” lawsuits involving large estates of millionaires or billionaires, but anyone can be a target, especially if they have a cognitive condition, such as Alzheimer’s or another dementia.
According to Sanford Finkel, MD, a geriatric psychiatrist with 34 years’ experience as an expert in will contests, “Dementia, as well as delirium, can make a person especially vulnerable to ‘undue influence’—excessive or inappropriate manipulation where someone uses deception to gain assets without a person’s true consent. And, unfortunately, relatives, friends, professionals, and caregivers are all in a position to exercise undue influence.” Finkel is Clinical Professor of Psychiatry at the University of Chicago Medical School and a member of AFA’s Medical, Scientific, and Memory Screening Advisory Board.
Money is not the only covetable asset that someone may try to obtain through undue influence, notes Finkel. Someone without a lot of cash in their bank account may still own a home that significantly appreciated in value from the purchase price. “I’ve done a number of cases involving farms in North Dakota which are now more valuable because oil and mineral deposits were discovered on them,” he said.
What is legally required to change a will?
Wills are vital legal tools to ensure a person’s wishes about who inherits their assets (i.e., the money and property that they own) are carried out appropriately. This living document can be updated and amended as the person’s wishes change. However, executing or changing a will relies on the person having “testamentary capacity.” This means that they possess the mental ability to know that they are making a will; understand the nature and extent of their assets; have a plan to distribute them; and know the individuals designated as beneficiaries and their relationships to them.
Having a dementia-related illness does not automatically mean loss of this capacity. Someone living in the early stages of dementia, for example, may retain the legal ability to make decisions. But as the illness progresses, and loss of memory and cognitive function becomes more severe, testamentary capacity is more compromised. Another serious disturbance in cognition that can also affect capacity is delirium. Caused by medications, dehydration, anemia, infections, and anesthesia, delirium can contribute to the development of dementia and vice versa, and affects someone’s ability to have testamentary capacity.
For a person’s own protection, someone lacking testamentary capacity cannot legally execute a will. Determinations about whether a person has testamentary capacity are made by a court, usually as part of litigation contesting a will or estate. The party contesting the will and alleging undue influence must prove that the person did not possess testamentary capacity.
Undue influence is not just limited to wills and estates—someone may try to manipulate the person into signing over control of their finances, transfer assets, or make purchases while they are still alive. Money is almost always a factor, of course, but not the only one. “Wills are not just legal documents conveying asset distribution; they can also convey love or rejection,” Finkel said. “When siblings stand to inherit unequal amounts, the one getting less may wonder if the parent loved them less. Correcting this ‘inequity’ can motivate them to try to get their parent to change the will or to contest it after the parent’s death.”
What can caregivers do?
Discussing your loved one’s wishes with them and other family members together, openly and honestly, and ensuring they are documented legally is the best way to help protect everyone. Litigation can become costly and contentious, especially when it’s between family members, so it’s best to get everyone on the same page as soon as possible to reduce the chances of having to go to court at a later time. If you suspect that someone manipulated your loved one with dementia into giving them assets, contact an elder law or estate planning attorney.
WARNING SIGNS OF UNDUE INFLUENCE
Red flags that someone living with a cognitive impairment may have been subjected to undue influence can include:
- A “new” beneficiary appears in the will, someone in a position of power that the person is/was dependent upon (financially or for care, such as access to medications, doctor’s appointments, food, or activities of daily living).
- The person is/was increasingly isolated or sequestered from others by someone who stands to benefit.
- “Changes” in the person’s wishes are radically different than anything previously expressed.
- Someone who stands to profit from the changes in the will had the opportunity and access to get the person to make them, possibly by bringing in their own attorneys or legal documents.
- Suspicious circumstances surround the will changes (i.e., “deathbed revisions” or someone new suddenly standing to benefit).
This article originally appeared in Alzheimer’s Today magazine, Volume 17, number 2. To read more of this issue, click here.