Power of Attorney Abuse & Undue Influence

When is a will or power of attorney considered suspect for “undue influence”?

Abuse and neglect of older adults can happen to anyone who depends on the care of others. Older adults can be the victim of elder abuse by their adult child, a caregiver, friend or anyone in a position of trust or authority. Our Power of Attorney Elder Abuse Law Lawyers warn family members to be vigilant in guarding against undue influence, isolation of their elderly family members and even theft by a Power of Attorney.

Family members are advised to observe who is spending the most time with their elderly loved one along with the following:

Isolation of a loved one is a common tactic of influencers to isolate the testator from friends and family. This makes it easier to persuade the vulnerable testator behind closed doors.

Increased control over elderly testator. The influencer may insist on being present at any meetings, bank meetings, medical visits, business meetings and the like or even prohibit visits to your loved one.

Changes to insurance forms, joint accounts, powers of attorney being created, meetings being booked to change a Will, RED FLAG warning signs of undue influence occur when a specific beneficiary is heavily favoured with assets. If the elderly person support person suddenly benefits the most from any changes, call a lawyer immediately or request a consult.

What happens when an elderly family member changes a will against the family agreement?

Herr Law Group Power of Attorney Elder Abuse Lawyers will move swiftly to reset the damage done by the Power of Attorney (POA) abuser by taking the following steps:

• Remove the authority of the POA abuser or joint account holder to use or access the victim’s funds and land;
• Locate, identify and preserve assets;
• Appoint a court ordered committee to ensure a loved one is no longer victimized;
• Get immediate freezing orders and injunctive relief to protect your loved one from further financial losses;
• Reverse the effect of any fraudulent transactions and to recover missing and hidden assets;
• Void any beneficiary designations on pensions, life insurance policies, and reversing joint account designations and joint tenancy and ownership of land;
• Invalidate any undue influence on assets transferred to the fraudster or improvident changes to the victim’s Will.

In addition to reversing transactions and recovering funds that have been wrongfully taken, courts are prepared to order that the abusers pay punitive damages to the victim and special costs.

How do you prove undue influence and who bears the onus on gifts made?

The courts need to see evidence of coercion because sometimes mere influence is not enough. One way to prove undue influence is to talk with the victim, preferably when they are alone. Be tactful when asking open-ended questions and take notes detailing the victim’s answers regarding the following:

• Has anything changed in your living arrangements recently?
• Are you able to go anywhere and see anyone you wish?
• Does anyone help you more than others?
• Does anyone help you make decisions? Do your banking for you?
• Has anyone threatened to take you from your home and put you in a care facility?

Questions like the above can help determine if there are red flags indicating the potential for undue influence. It’s important to note that proving undue influence can be challenging when much of the influencing is done when others are not around to witness it.

Section 52 of British Columbia’s Wills, Estates and Succession Act states the test for who has the onus of proof for BC Undue Influence involving BC Wills.

In a proceeding, if a person claims that a BC Will or any provision of it resulted from another person:

• Being in a position where the potential for dependence or domination of the will-maker was present;
• Using that position to unduly influence the will-maker to make the will or the provision of it that is challenged;
• Establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present.

Then the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged.

Undue influence lawyers can assist you in protecting your loved one before undue influence becomes a problem.