Medical and Social Aspects
Key Legal Issues
Role and Responses
Key Legal Issues
Undue influence is the misuse of one's role and power to exploit the trust, dependence, and fear of another to deceptively gain control over that person's decision in a particular matter. Along with capacity and consent, undue influence is a key concept in elder law. Capacity and consent relate primarily to an individual's abilities to understand and process information in order to take action or to make decisions. Undue influence focuses more on the relationship between the individual and another person, coupled with that person's opportunity and power to manipulate the vulnerable person's thoughts and actions. An older person may be more vulnerable to undue influence because he or she has diminished capacity or the person has become isolated from trustworthy family and friends.
The legal standard for undue influence has been defined as influence that amounts to deception, force or coercion that destroys a person's free agency (Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers). Undue influence arises most predominantly in probate, trust and estates, power of attorney and guardianship matters. Undue influence typically is not itself a crime, but it can be a means for committing a crime, including exploitation, fraud, domestic abuse, and sexual assault. For example, in its definition of the crime of exploitation, the Nevada elder abuse statute specifies undue influence as a method for gaining control over a vulnerable person (Abuse, Neglect, Exploitation or Isolation of Older Persons and Vulnerable Persons, NRS 200.5091, et seq.) A 2012 Missouri law does make undue influence a crime by including it in the types of acts that, when committed against an elderly or disabled person, constitute the crime of financial exploitation.
American Bar Association Commission on Aging and the Law: