UNPACKING UNDUE INFLUENCE
By Mary Joy Quinn
When I went to work for San Francisco Superior Court in the Probate Department, I had much to learn. My previous work as an operating room nurse, public health nurse and gerontologist had not prepared me for immersion in the judicial system. And yet, the work of a conservatorship investigator was decidedly related because the work involved interviewing elders wherever they were living, contacting their families and friends and the professionals with whom they were involved: attorneys, physicians, adult protective services staff, accountants, clergy, bank personnel, and others. The differences were adherence to law and writing reports for the judge to review and to base decisions upon.
The probate law provided structure and direction. However, there was one term that was most mysterious and murky: undue influence. There was no definition of it in the Probate Code and yet it was mentioned more than 25 times in various contexts: marriage, gifts, conservatorship of estate, powers of attorney, trusts, wills. Some observers have subjectively noted, “It’s like pornography. I know it when I see it.”
Some observers have noted, “It's like pornography. I know it when I see it.”
Once I became director of the Probate Department, I was in a position to begin unpacking undue influence using grant assistance. The first grant, funded by the Borchard Foundation Center on Law and Aging in 2009, supported exploratory research.
The research team was composed of consultants Lisa Nerenberg and Eileen Goldman, as well as Deanna Piazza, Research Analyst from the California Administrative Offices of the Courts. I served as project director. The work consisted of an extensive literature review of coercion and persuasion, review of laws of California and those of other states on undue influence, focus groups, and case review. The case review of 25 newly established conservatorships revealed that 88% of the people lacked judgment and insight. Influencers were family, friends, and neighbors in the bulk of cases. In 13% of cases, romantic partners were the influencers while telemarketers or lottery scammers were influencers in 20% of the cases. The most common type of abuse was financial abuse, either cash or real estate, that could not be remedied without a conservatorship. Tactics included playing on weakness of the victim, lying and deception, and repeated solicitations.
In California law, Civil Code section 1575, which had been enacted in 1872, contains a definition of undue influence. That law and case law of past judicial decisions on undue influence were what legal professionals had been relying upon. Since most undue influence cases are brought in Probate courts, it seemed logical that the definition should be modernized and located in the Probate Code.
All the sources consulted in this study and the various disciplines agreed on a framework of undue influence: a victim who may or may not have cognitive impairments, an influencer who had formal or informal authority, specific tactics, and an outcome that benefitted the influencer and harmed the victim. The report outlined new and existing avenues for crafting legislation regarding undue influence including the framework we had devised. The research study can be found at http://www.courts.ca.gov/documents/UndueInfluence.pdf
The framework was contained in new California law which took effect in 2014. Probate Code section 86 and Welfare and Institution Code section 15610.78 echo and amplify the framework and provide guidance to judges and attorneys. Because the legal definition is in lay terms, it can be useful to anyone concerned about undue influence.
The next portion of unpacking undue influence was a second research study, also funded by the Borchard Foundation Center on Law and Aging which was awarded in 2015. This time the research team was composed of Lisa Nerenberg as well as Adria Navarro and Kate Wilbur at University of Southern California. Again, I served as project director. Our goal was to develop a screening tool for undue influence based on the new law and the previous study. We conducted focus groups composed of APS staff and supervisors in two California counties who then piloted a draft tool that reflected the focus groups as well as a literature review of existing undue influence screening tools and models. We also received comments on the draft tool from a panel of experts and two APS administrators. The findings can be found at https://www.elderjusticecal.org/undue-influence.html .
The California Undue Influence Screening Tool (CUIST) lays out the framework used in our studies and the law and is in check list format that divides the four elements of undue influence: victim, influencer, tactics, and unfair results. It is in lay language. It is intended to guide, mobilize and organize the user’s findings in a given case. Although based on California law and APS personnel, it is being implemented in other states and with other professionals. For instance, it has been incorporated into the judicial bench book of one California county. Some neuropsychologists seem particularly interested and are using CUIST with their clinical cases and when they give testimony in court. One home care manager gave the tool to a family to complete for a possible petition for conservatorship. Conservatorship investigators are incorporating the tool into their reports for judges. Training on CUIST for APS is currently being held in California counties.
The unpacking of undue influence continues as APS practitioners, other professionals in California and other states, and perhaps even the public use CUIST to help them think about undue influence with greater objectivity. We hope it will fuel evidence based practice. It has been a joy to do this unpacking and to find that the results are proving useful and helpful.
About the author
Mary Joy Quinn is a consultant and the retired Director of San Francisco Probate Department. While there, she conducted over 5000 conservatorship investigations including dozens where undue influence was a feature. She co-authored one of the first books on elder abuse and authored a book on adult guardianship as well as numerous articles on conservatorships, adult guardianship and undue influence. She served as the project director for two academic research studies on undue influence, both funded by the Borchard Foundation Center on Law and Aging.
Excellent article Mary Joy. In my mind the key to unlocking undue influence was contained in the phrase "an outcome that benefitted the influencer and harmed the victim." Also, nifty picture!!
The probate law provided structure and direction. However, there was one term that was most mysterious and murky: undue influence. There was no definition of it in the Probate Code and yet it was mentioned more than 25 times in various contexts: marriage, gifts, conservatorship of estate, powers of attorney, trusts, wills. Some observers have subjectively noted, “It’s like pornography. I know it when I see it
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