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Sacramento Estate Planning Attorney

What is 'undue influence' and how does it affect the elderly?

Theft under California law is really quite simple. Like most states, it involves intentionally depriving another person of their rightfully owned property permanently, and the penalties are generally assessed based on the severity of the crime. However, there is a more serious kind of theft that often goes unnoticed and unreported in California's elderly population, the crime of financial abuse.

Financial abuse of an elderly person is a serious problem in California, but because it often involves a victim who is somewhat helpless and powerless to stop it, it may be under reported. Financial abuse can occur any time a person asserts undue influence over another person. The determination of undue influence is based upon the subjective facts of each individual case, and involves issues such as the vulnerability of the victim and the influencer's authority over the victim, as well as the tactics used by the influencer to coerce or take advantage over the victim.

Undue influence is often discovered amongst older populations, when an elderly victim has entrusted a family member or other person to take care of financial, health care or other decisions on his or her behalf. When family members take this authority through deception, force or undue influence, and then use this authority for their own profit, the result is financial abuse.

There are ways to guard against financial abuse by appointing a trustworthy and accountable party as a designated representative to wield a power of attorney for the person. A power of attorney can be granted by any person of sound mind who is able to make a clear and voluntary appointment of the power of attorney. The power of attorney can be broad and all-encompassing, or it can be limited in scope to things such as certain financial decisions or health care decisions. In the fight against undue influence, the power of attorney can be a very valuable weapon.

Source: California Code WIC 15610, accessed March 23, 2015

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My Sacramento law practice, Michael A. Sawamura, Attorney at Law, focuses on wills, trusts and estate planning law in addition to business law and corporate defense services. My clients include professionals, government employees, small businesses, blue-collar workers and national corporations.

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