Law Office of Stephen W. Penn and Associates

What is undue influence?

If your well-to-do California parent requires the services of a live-in caregiver due to age, illness, injury or infirmity, you likely feel relieved that (s)he can afford such care. On the other hand, however, you may have developed a nagging suspicion that this caregiver is exerting too much influence on and control over your vulnerable parent. You may even fear that (s)he might convince your parent to change his or her will.

One of the state bar associations explains that undue influence is what happens when someone is in a position of power over someone else and abuses that power by substituting his or her own will over the free will of the victim. 

Valid will criteria

As you probably know, your parent, or anyone else for that matter, must be of sound mind to create a valid last will and testament. Most courts define "sound mind" as the following:

  • Knowing the general nature and extent of one's property and assets
  • Knowing who one's natural heirs are and the fact that the law expects one to provide for them in one's will
  • Knowing that one is making one's last will and testament
  • Being free of delusions or the influence of someone else that could cause one to make unexpected or unusual bequests

Undue influence red flags

A self-interested caregiver presents the classic undue influence example. (S)he appears to care for the patient's every possible need, but his or her real motive is to receive a large inheritance when the patient dies. Ask yourself the following questions with regard to your parent's caretaker:

  • Does (s)he try to isolate your parent from family and friends?
  • Does (s)he suggest that you and other family members stop visiting your parent so as to not upset him or her?
  • Does (s)he screen your parent's phone calls and often tell you or others that your parent cannot speak to you or them because (s)he's resting or not feeling well?
  • Does (s)he insert himself or herself into your parent's conversations, often supplying words for him or her?
  • Does (s)he take it upon himself or herself to pay your parent's bills, handle his or her banking transactions and advise him or her on expenditures?
  • Does (s)he administer your parent's medications, thereby controlling what (s)he takes and how much of it?

If your parent's caregiver exhibits any of the above behaviors, you have good reason to be suspicious that (s)he may indeed be exerting undue influence over him or her. While this educational information is not legal advice, it can help you understand undue influence and what to watch for.

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  • SCBA | Santa Clara County Bar Association | EST 1917
  • State Bar Of California | California Board Of Legal Specialization | Stephen W. Penn
  • Henry P. Collada Memorial Award 2012