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UNDERSTANDING THE STAGES OF UNDUE INFLUENCE
Assuming that there is a care-giver (family
member or neighbor) or other person meeting the profile of a potential abuser
who encounters an older person who is dependent on others for their care, how
does the abusive relationship actually develop? Based on the above-cited study
of Michael J. Tueth, M.D., financial exploitation generally develops in certain
stages:
 | The perpetrator (whether an "opportunist" or
"predator") first recognizes that the elderly person is impaired and
vulnerable. This observation may be based on the older person’s physical
and/or mental deficiencies in vision, memory, speech, hearing, or mobility.
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| The perpetrator next secures the victim’s
trust and confidence by being friendly, considerate, and helpful. (If there
has been a long-standing relationship between the parties, this trust may
already be present.)
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| As the victim grows to place their trust and
confidence in the perpetrator, the perpetrator begins to isolate the victim
from contact with other people (friends, relatives, attorney, clergy, etc.)
who may have been helpers in the past, or whose influence might interfere with
that of the perpetrator.
 | In the more obvious cases, phone calls are
screened, mail is checked, and attempts by others to visit the victim are
discouraged or conducted only in the presence of the perpetrator.
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| Purposeful isolation of the victim is
frequently the best indicator of undue influence. Oftentimes the victim is
already living alone and generally removed from contact with outsiders, due
either to physical limitations or a psychological fear of leaving the confines
of home, and the perpetrator further reinforces their isolation.
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| The perpetrator can create a warped sense of
reality in which the victim learns to regard all others with fear and
mistrust. For example, the perpetrator will convince the victim that everyone
else is interested only in selling their home, taking their money, and then
dumping them in a nursing home.
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| Gradually the victim transfers all of their
affection to the perpetrator. The victim will even lie about their condition
to keep away family, friends, the police, or an investigator from the
Area Agency on Aging's
Protective Service
Program.
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| At this stage perpetrators will begin to
manipulate the victim through acts of intimidation and threats, e.g.,
withholding food or medicine, or ceasing any further contact, unless the
victim agrees to deed over their home or execute a new will that benefits the
perpetrator.
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| The victim’s long-time attorney and other
advisors may be replaced at this point by unscrupulous or naive professionals
who are chosen by the perpetrator to change the victim’s estate plan to
benefit the perpetrator.
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| As a result of these factors, the victim
winds up giving the perpetrator access or control over their bank accounts,
investments, and other assets, and making substantial "gifts" to the
perpetrator and/or members of the perpetrator’s family. |
BANK ACCOUNT ACTIVITY
Unusual activity in the victim’s bank accounts
is usually the best evidence that financial exploitation is occurring. Such
activity can include:
| Placing the perpetrator’s name on bank
accounts as agent, trustee, or co-owner with right of survivorship.
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| Transfer of funds to new accounts at banks
with which the victim has had no prior connection, and frequent transfers of
funds among several accounts.
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| Checks in large amounts or on frequent
occasions being paid to persons who have had no prior connection to the
victim, especially if they are related to or associated with the perpetrator.
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| Frequent withdrawals being made through
ATMs, especially if victim is physically frail and has not previously used an
ATM.
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| Suspicious signatures appearing on checks or
credit card applications.
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| Bank statements and canceled checks no
longer being sent to the victim’s home address. |
STOCKHOLM SYNDROME
In evaluating the facts of a specific case for
proof of abuse, to the untrained eye the actions of the suspected victim in
transferring or bequeathing assets to the perpetrator may seem voluntary, but in
many cases they are not.
Psychologists have found that in relationships
where a dominant person has succeeded in isolating and controlling a weaker
person’s environment, the victim will tend to form a very strong bond with the
dominant party, even to the point where the victim will defend the perpetrator if
their control is challenged by an outside party who is attempting to rescue the
victim.
This phenomenon is known as the Stockholm
syndrome, based on a 1973 incident in Sweden involving bank hostages who so
bonded and identified with their captors that they fought off police efforts to
rescue them.
While the Stockholm syndrome may be a natural
survival strategy that a hostage will unconsciously employ, its practical effect
in an undue influence case will be that the victim will actually side with the
perpetrator if confronted with evidence of financial exploitation, and may
refuse to take legal action against them.
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DISCLAIMER
Martin J. Hagan is licensed to practice law in the
Commonwealth of Pennsylvania. This website is intended solely for
informational use and is not intended to solicit clients. Likewise, any
information contained in or obtained from this web site is for informational
purposes only and is not intended to be used as legal advice.
IRS CIRCULAR 230 DISCLAIMER :
Pursuant to Treasury guidelines, any tax advice contained in this website
(or any link from it) does not constitute a formal opinion. Accordingly, any tax
advice contained in this website (or any link from it) is not intended or
written to be used, and cannot be used by any taxpayer, for the purpose of
avoiding penalties that may be asserted by the Internal Revenue Service. You should seek advice
based on your particular circumstances from an independent tax advisor.
Send mail to mhagan@haganlaw.net with
questions or comments about this web site.
Copyright © 2008 Martin J. Hagan, One Gateway Center - 8 South; Pittsburgh, PA 15222-1435
Last Updated:
05/28/08
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