Elder Financial Abuse – Undue Influence
By: George F. Dickerman, Esq.
Elder financial abuse generally occurs when a caregiver, family member or friend obtains property (real or personal) that once belonged to the elder. The manner in which these properties were obtained usually involves undue influence.
“Undue influence” has been defined by a myriad of statutes and case law, and varies somewhat among the states. In California, for example, undue influence is generally used in two contexts: (1) making a contract or conveyance, and (2) applying certain common law presumptions (See: Elder Law Litigation: Remedies for Financial Abuse, Continuing Education of the Bar/2005).
California Civil Code Section 1575 describes undue influence in contract and conveyance cases:
“The use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him or her, of such confidence or authority for the purpose of obtaining an unfair advantage over him or her;
Taking an unfair advantage of another’s weaker state of mind; or
Taking a grossly oppressive and unfair advantage of another’s necessities or distress.”
The common law, and Civil Code section 1575, discuss presumptions of undue influence that exist, primarily when a fiduciary or confidential relationship occur between an elder and the alleged perpetrator. Undue influence results when the perpetrator participates in obtaining an undue profit or unfair advantage over the elder.
What this presumption means is that the burden of proof is shifted to the defendant to prove the nonexistence of the presumed undue influence or fraud (See: Continuing Education of the Bar, supra).
Abridged
SOURCE: Elder Law- Phoenix Blog
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1 comment:
Then there's the of quiet epidemic of legalized elder abuse practiced by large insurance companies and their predatory sales agents. They sell unsuitable annuities to the elderly, effectively locking up their life savings, in order to get a sales commission.
As the baby boom generation reaches retirement age, insurance companies are preparing for a boon in fixed securities and annuities investing. The companies use third party, independent sales agents who use unscrupulous tactics to sell their products. The insurance companies can then claim they are not responsible while raking in billions!
We need more laws regulating the legalized scams practiced by many insurance companies who prey on the elderly. Badly written policies, inappropriate investments and unscrupulous sales practices are rampant.
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