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Churning: Financial Abuse of the Elderly in the Insurance Context

July 21, 2017

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Undue Influence: California's Take

July 1, 2017

California law prohibits any person from taking the property of an elderly or causing an elderly person to part with her money or assets through the use of "undue influence." 

 

 

What exactly is undue influence and how does California law define it? 

 

Civil Code Section 1575 defines the term undue influence in several ways, any one of which can work alone or in combination with other definitions.  1. Use of a confidence or real or apparent authority for the purpose of obtaining an unfair advantage over someone. 2. Taking unfair advantage of another's weakness of mind. 3. Taking grossly oppressive and unfair advantage of another's necessities or distress.

 

Within the context of an elder abuse case, the term is defined in Welfare & Institutions Code Section 15610.70 as follows: "excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity." 

 

Courts will consider the following factors in deciding whether a particular defendant wielded undue influence over an elder abuse plaintiff: 1. vulnerability of the victim; 2. the influencer's apparent authority; 3. the actions of tactics used by the influencer (e.g. use of affection); and 4. the equity of the result.

 

One common example of a situation where undue influence may be found is where the influencer prays on the loneliness of his or her victim, crying about his or her own financial problems in the victim's presence to tug at the victim's heart strings and then collecting large sums from the victim in furtherance of a fraudulent scheme.

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