Undue Influence: There Oughta be a Law (or Two)

When undue influence was “discovered” as a significant factor in elder abuse a decade ago, it immediately struck a chord with advocates and service providers who'd been seeing the phenomenon for years. They may not have had a term for it, but they knew it when they saw it.

But translating undue influence into law, or more specifically, translating it into an infraction of the law, hasn’t been easy. See Undue Influence is Not a Crime (Nov 20, 06), Postscript on Undue Influence is Not a Crime (Dec 4, 06), PPS on Undue Influence: The Civil Side (Dec 14, 06), and Long Distance Undue Influence (June 20, 06). For links to these postings and more on undue influence, visit my Web site at Prevent Elder Abuse.

This year, advocates in California are tackling the problem full force. The California District Attorney's Association has teamed up with California Senator Bob Margett to broaden the definition of financial abuse used in California’s penal code (PC 368) to include “undue influence upon an elder or dependent adult for financial gain.”
 The bill, SB 1259, came largely in response to the criminal case against Ronald Brock that I described in “Elder Abuse is Not A Crime.” In that landmark case, Brock was convicted of theft based on undue influence, but an appeals court overturned the conviction on that grounds that obtaining money by consent is only theft if the defendant uses coercion or misrepresentation and that the judge had erred in allowing a conviction for conduct that was "little more than overpersuasion." See SB 1259.

SB 1140, sponsored by State Senator Darrell Steinberg, would amend sections of the state’s Welfare and Institutions code pertaining to financial abuse to allow elders to recover property (and lawyers’ fees) when property is taken from them through undue influence or when they lack full mental capacity. See SB 1140.

Drawing the lines between persuasion, overpersuasion, and unlawful acts clearly isn’t going to be easy. It requires rethinking old assumptions and reevaluating deeply held values. Our society reveres and rewards the ingenuous and entrepreneurial who succeed in anticipating and responding to both real and fabricated needs and desires. Enticement and seduction are a fact of life. But as we come to understand the vulnerabilities engendered by advanced age, we need to balance our commitment to personal freedom and choice with our obligation to protect and defend. In short, we need to define the point at which society has a responsibility to step in and call foul.