Undue influence arises when an individual in a confidential relationship with a vulnerable testator asserts apparent authority over the testator’s free will to pursue an improper bequest from his/her estate.
Throughout the COVID-19 pandemic, many testators have lived with family members with minimal or no access to friends, caregivers and healthcare providers—a formula that often ignites undue influence behavior.
And, in situations where vulnerable loved ones live alone, social isolation has caused some aging and disabled individuals to rely on other people completely to care for their healthcare, financial and personal needs.
Testators are likewise not meeting with their lawyers in person during the pandemic when drafting or modifying their testamentary documents, which makes it difficult for attorneys to assess whether clients are acting under their own free will.
Estate attorneys in Iowa have also reported the number of people planning their estates has doubled during the COVID-19 crisis.
The current pandemic therefore holds far-reaching repercussions for the elderly and disabled beyond the disease itself—legal implications that will most likely spark many new undue influence claims moving forward.
COVID-19 and Undue Influence Vulnerability
Before COVID-19, senior adults and the disabled in Iowa were constantly at risk of becoming undue influence victims, even when they held testamentary capacity.
Certain incidents in an elder loved one’s life often make it easier for family members or third parties to influence his/her free will.
- Death of a spouse.
- Personal needs dependency.
- Cognitive impairment.
- Diminished capacity.
Such events have become even more common during the pandemic—creating greater vulnerability among undue influence victims.
Social distancing mandates in particular have separated many elder and disabled persons from community resources, family support systems, and healthcare networks that have traditionally protected these groups against people seeking improper favors from their estates.
You should also know that once an influencer establishes psychological dependency and successfully exerts his/her authority and control over a loved one’s personal care, the undue influence behavior may be difficult to break.
It’s therefore important for you to recognize COVID-19 undue influence, red flags that signal whether another person may have compromised your elder or disabled loved one’s free will.
Undue Influence Signs During the Pandemic
You need to be actively on the lookout for influencers during the COVID-19 pandemic. An influencer can be any individual who attempts to exert singular control over a family member’s finances or health care decisions—it’s also necessary to be exceedingly vigilant when your loved one is ill or living alone.
Be further concerned if an ordinarily silent friend or family member suddenly emerges in your loved one’s life and forms a confidential relationship with him/her.
A legal confidential relationship arises when one or more people enjoy the confidence and trust of a vulnerable/disabled person and act on his/her behalf with no self-interest.
Most of the time, influencers will cut off contact between you and the victim and hide his/her financial or testamentary documents from you. Influencers likewise accompany vulnerable individuals to the bank when opening new accounts and they usually choose and hire an estate attorney to draft or modify the victim’s Will or Trust.
Other undue influence signs include:
- Family members manipulating an elder into opening a joint bank account.
- Boyfriends/girlfriends accepting estate asset gifts.
- Fraudsters deceiving or forcing a loved one into executing a Will or Trust.
- Financial advisors giving advice to an elder that benefits the advisor.
- Caregivers encouraging a senior to exclude family members from his/her/will.
- Trustees/fiduciaries buying real estate from a vulnerable grantor’s estate.
- Caregivers refusing to provide services until the recipient grants them a power of attorney.
Protecting Loved Ones from Undue Influence
According to the Iowa State Data Center, about 76,000 Iowans may have experienced elder abuse during the COVID-19 pandemic—a fifty percent rise from 2019. Undue influence is elder abuse because Iowa state law deems such conduct illicit financial exploitation.
There unfortunately is no one approach to stop undue influence from happening. However, taking the following precautions may help mitigate undue influence damage when it does happen:
- Establish a group of trusted family members, or attorneys, to monitor your loved one’s monthly financial transactions.
- Stay in close contact with elderly or disable family members who live alone or practice social distancing during the pandemic.
- Keep a personal detailed journal of suspicious undue influence activity—you may need this evidence during probate proceedings to reverse the undue influence damages to your inheritance.
Finally, don’t be worried about being paranoid when suspecting undue influence behavior and never dismiss suspicious conduct completely. Elder abuse and undue influence acts during the COVID-19 pandemic are real, and the problem will continue unless someone in the elder’s family takes measures to prevent it from happening.
How Heirs Can Avoiding Facing Undue Influence Claims
So, what if you are a beneficiary in an elder loved one’s Will or Trust and have a legitimate interest to care for the person as he/she ages? You surely would not want to create family conflicts or have an interested party bring undue influence litigation after the elder passes away.
It is perfectly legal for testators or grantors to bequeath their caregivers (or any other person they choose) estate assets. However, they must make certain their estate planning attorney documents their intent and testamentary capacity before adding caregiver beneficiaries to their testamentary documents—such measures can show the courts that the decedent made the decisions from his/her own free will.
Another way you can avoid misunderstandings and communication problems among family members when caring for an aging loved one is to enter into a personal care agreement with the elder before providing the care.
Personal care agreements are binding contracts that define the tasks you will offer the elder and explain how you, as the elder’s fiduciary, will report his/her health and financial standing to other family members.
Remember, even when you take care of a loved one without charge, family members have a right to know about which services you plan to provide for him/her and whether an audit system will exist for monitoring your performance.
In a Nutshell….
It’s important to understand how COVID-19 social distancing and isolation has affected undue influence vulnerability among seniors and the disabled. There are steps you can take to safeguard against undue influence. And never be afraid to document suspicious conduct immediately when you suspect someone is unduly influencing a loved one.
You should also not refuse to care for loved ones during the pandemic just because the aging care recipient has named you in his/her testamentary documents. Open communication among family members and beneficiaries while providing care for an elder is always the first line of defense against facing a Will or Trust dispute in probate.