If you run a search for the term “undue influence” in Florida’s statutes, you’ll get over 30 hits. But try finding a single statutory definition for undue influence. It doesn’t exist.  What we’re left with instead is case law, which is context specific and open to a broad range of interpretation by whomever your judge (or jury) happens to be. It’s basically a “I know it when I see it” standard.

“I know it when I see it” … is a problem:

Why is this a problem? Because when it comes to undue influence, I may know “it” when I see it, and someone else will know “it” when they see it, but what they see and what they “know” may or may not be what I see and what I “know,” and that’s NOT okay.

Good lawyering depends in large part on the ability to predict the legal consequences of a given set of facts. Amorphous legal standards make it impossible to advise our clients with any degree of certainty. This lack of certainty is a problem for estate planners and litigators alike.

No matter how perfectly drafted your estate planning documents might be, there’s no guarantee they’ll survive a future undue-influence challenge because the definition of what we exactly mean by undue influence is a moving target. It’s whatever your fact finder thinks it is. And as litigators looking back on a set of facts, this same lack of certainty makes it impossible to predict in advance which Carpenter factor your particular judge may or may not consider in your particular case. This uncertainty makes it dramatically more difficult to litigate and settle cases.

Developing a statutory definition:

It doesn’t have to be this way. Florida’s “I know it when I see it” approach to undue influence isn’t universal. There are alternatives.

For example, in California a team of experts on elder abuse and undue influence received funding from the Borchard Foundation on Law and Aging to conduct two projects. The research team was lead by Mary Joy Quinn, who was then the Director of the Probate Department for the San Francisco Superior Court.

In the first project, the researchers examined the literature on undue influence as well as the statutory definitions of undue influence in all fifty states. This effort ultimately resulted in a 146-page report entitled Undue Influence: Definitions and Applications Final Report, which in turn lead to California Welfare and Institutions Code § 15610.70. This statute, quoted below, offers a clear and concise definition for undue influence that’s easily understandable by lawyers and non-lawyers alike. Note that California’s statutory definition also includes the indicators or “red flags” of undue influence a court is required to consider (this is a codification of Florida’s Carpenter factors).

(a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:

(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.

(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.

(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:

(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.

(B) Use of affection, intimidation, or coercion.

(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.

(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.

(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.

Putting theory into practice:

In step two of the California undue-influence project, the research team built on the new statutory language to conduct focus groups and pilot tests, obtain expert review of, refine, and publish a screening tool for use by non-lawyer elder abuse investigators.

This effort resulted in a 30-page article published in the Journal of Elder Abuse & Neglect entitled Developing an Undue Influence Screening Tool for Adult Protective Services, which in turn produced the California Undue Influence Screening Tool (CUIST) and accompanying instructions. This is the kind of practical, hands-on tool that turns a great legislative idea into a powerful real-world solution for the victims of elder exploitation and their families.

Understanding the science of undue influence:

Embedded in California’s statutory definition for undue influence and the list of red flags courts are required to consider when adjudicating these cases is a deep understanding of the cognitive neuroscience underlying this particular form of elder abuse. The victims in these cases aren’t any more gullible than anyone else; they’re normal human beings acting exactly as one would expect them to act if targeted for exploitation at a time when their defenses are low because they’re cognitively or emotionally impaired.

For a fascinating introduction to the latest cutting edge science shaping our understanding of a person’s susceptibility to undue influence — especially as applied to the elderly — you’ll want to check out what the researchers speaking at the Stopping Financial Exploitation-Florida On The Forefront conference had to say. The Chair of that conference was elder law attorney extraordinaire Shannon Miller, and fortunately for all of us  who didn’t get to attend she’s posted video links for each speaker. The following is a sample from her excellent YouTube channel:

  1. Cognitive Changes In The Aging Brain Put Seniors At Risk for Financial Exploitation, by Dr. Nathan Spreng, Ph.D., McGill University
  2. Are Older Individuals At Risk For Cyber Exploitation? Research On The Exploitable Brain, by Dr. Natalie Ebner, Ph.D., University of Florida
  3. Financial Vulnerability and Exploitation in Aging: From Surveillance To Intervention and Prevention, by Dr. Gary Turner, Ph.D., York University
  4. The Exploitable Brain: Clues To Prevent Exploitation Of The Elderly, by Dr. Bonnie Levin, Ph.D., University of Miami