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What constitutes undue influence?

If you fear that your elderly, ill or disabled parent in California is developing too much reliance on his/her caregiver, you may wish to take preventative measures to ensure that (s)he does not change his/her will while under this person’s undue influence. As explained by a state bar association at its recent meeting, undue influence occurs when one individual assumes a power position over another individual and misuses that power to overcome the victim’s free will and substitute his/her own will.

Your parent must “be of sound mind” to make a valid last will and testament. This means (s)he must have the following knowledge and capabilities:

  • (S)he must realize the nature and extent of his/her property and assets.
  • (S)he must realize and remember who the law expects him/her to name as heirs, such as a spouse, children, grandchildren, etc.
  • (S)he must realize that (s)he is making his/her last will and testament.
  • (S)he must not be under any delusions or influences that could cause him/her to make unusual, unexpected or “surprise” bequests, particularly those having a large value.

Undue influence indications

Unfortunately, an overly assertive caregiver is the classic example of someone who exerts undue influence over his/her patient so that the patient will leave him/her a substantial bequest when (s)he dies. If you suspect that your parent’s caregiver fits this description, be on the lookout for the following red flags:

  • (S)he tries to isolate your parent from you and the rest of the family.
  • (S)he tries to discourage you and other family members from visiting your parent.
  • (S)he insists on staying in the room and joining in the conversation when you or other family members are at your parent’s house.
  • (S)he screens your parent’s phone calls
  • (S)he helps your parent pay bills and manage his/her finances even though such things are not part of the duties for which (s)he was hired.
  • (S)he administers and therefore controls the medications your parent receives.

If these or other red flags convince you that your parent’s caregiver is unduly influencing him/her, you should attempt to persuade your parent to fire him/her. If (s)he refuses to do so, do your best to thwart the caregiver’s attempt to isolate your parent. Also be sure to keep reassuring your parent that you and the rest of the family loves, values and wants the best for him/her. If the situation continues to deteriorate, explore the possibility of intervening. This educational information is not legal advice, but it can help you understand undue influence and what to look for.

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