As a caregiver, helping parents get their affairs in order is a common although sometimes delicate situation. Before making suggestions and offering assistance with decision-making, it's important to understand the matter of undue influence so you can avoid a potentially costly legal battle that could leave your family torn apart.
What Is Undue Influence?
According to The National Center on Law & Elder Rights, this legal phrase refers to replacing the "will or free choice of an individual with the will or choice of another person."
In other words, this occurs when someone uses their power or authority to control another person, such as an individual who could be vulnerable due to age, mental capacity or other factors.
This situation may arise when an adult child or caregiver influences aging parents or other elderly relatives in financial matters or healthcare decisions to do something they wouldn't usually agree with.
It can occur when an individual is pressured to do something they don't want to do by someone they depend on for care. And if someone is making decisions for the individual that appear to go against their likely wishes, that could also be undue influence.
Undue Influence And a Parent's Will
Family, wills and estates can be tricky, especially when there is more than one beneficiary.
For example, if a family member leaves a greater sum of money to a caregiver in their will, other family members might believe the caregiver influenced the deceased person to leave them a larger inheritance.
Sometimes, beneficiaries believe an individual has been coerced into making unexpected decisions such as leaving property to people they wouldn't typically include or splitting an inheritance in a surprising way. They could then start a legal claim against the person who allegedly exerted this influence.
For example, siblings could start a claim against the sibling who received a larger share of an inheritance if they believed that sibling coerced the parent into the decision.
While state laws set the parameters of a legal claim for undue influence, The National Center on Law & Elder Rights suggests looking for the following elements:
- Is the person easily persuaded and do they have a tough time saying "no"?
- Is the perpetrator in a position of power or authority?
- Can the perpetrator use their power to make the person do something they did not want to do?
- Was the outcome wrong, bad or unfair?
If you're a caregiver to a member of your family, becoming aware of these elements can help you avoid behaviors and situations that could lead to future legal actions by other members of your family once your loved one passes on.
How To Avoid a Legal Battle
Now that you know the definition and elements of the claim, learn how to protect yourself against an undue influence claim as a caregiver to a family member.
To help avoid a legal battle down the road, it's important to be transparent about all your actions regarding providing care and advice to your aging family member. Here are a few tips:
- Meet with a lawyer to determine that your parents are of sound mind when drafting their will.
- Keep your siblings up-to-date on your parents' financial and medical situations by sharing statements and records.
- Get a written agreement for living arrangements and payment for care if needed, especially if you and your aging parents live together.
- Keep careful financial records and all receipts and statements for your parents' expenses.
- Get all legal documentation requiring your parent's signature witnessed by a third party — someone not in your family.
Adult children who are primary caregivers to aging parents have a lot on their plates. Becoming familiar with the idea of undue influence can help you take action now to avoid future stressful and expensive legal action by unhappy siblings.