“The process of estate planning is only more painful, if one spouse has already passed. In this situation, a surviving elderly parent may enlist the assistance of their adult children to manage and divvy up finances.”
Having adult children actively involved with their mother or father, when the other spouse has passed is a blessing. However, sometimes too much of their influence can create unwanted and burdensome legal problems, especially if a parent is having diminished mental capacity. In an article from Caring.com, “How to Stay Respectful (and Legal) In Parents’ Estate Planning,”{: target="_blank"} adult children are advised to consider that there is such a thing as too much influence, referred to as “undue influence” and every state has some kind of undue influence law that addresses this problem.
To prove that someone has exerted undue influence, a checklist is used and all the items on the checklist must be proven by the party asserting this has occurred. Undue influence is considered to have happened when:
- The deceased person was susceptible to the undue influence
- The accused had the opportunity to influence the decedent
- The accused was influencing the decedent to gain favor
- The accused was in a position of trust and/or authority over the decedent
Notice that undue influence is far more than having more than one conversation with Uncle Ben about his wishes. Its focus is on manipulation—large amounts of it. It happens mostly in nursing homes and long-term care facilities, where someone will build trust with a senior person who is in a vulnerable state. An adult child would normally have this trust, especially if they are the key caretaker. Over time, the elderly parent becomes dependent on one child or one caretaker for daily care and then they become vulnerable to being manipulated.
Undue influence generally involves changes to the estate plan—sometimes many changes or sweeping changes in a short period of time. Other family members are often suddenly disinherited or a large cash transfer to the person takes place, with no prior discussion with other family members.
Speak with an elder law attorney, if you are concerned that you (or a loved one) are being pressured to change your estate plan (or you see evidence of large amounts of money being transferred out of your loved one’s accounts). Elder financial abuse is often the result of undue influence and an experienced elder law attorney and the proper authorities will be able to help.
Reference: Caring.com (May 24, 2018) “How to Stay Respectful (and Legal) In Parents’ Estate Planning,”{: target="_blank"}