Undue Influence and Financial Abuse


9 October 2020

By Sara Pon

Introduction

October 4-10, 2020 is Make-a-Will Week to encourage people to make or update their will. When people are making or changing a will there is the possibility for abuse or undue influence. Professionals drafting wills must be aware of the signs of undue influence and what steps can be taken if a wills practitioner or others suspect the will-maker is being unduly influenced. This blog will describe what undue influence is, identify some of the signs of undue influence, and provide a practice checklist for wills practitioners. This blog will also provide information on reporting undue influence and other forms of financial abuse.

 

What is Undue Influence?

Undue influence occurs when the influencer pressures the will-maker to create or change their will in a way that the influencer wants but the will-maker does not. Undue influence can also occur when creating or changing representation agreements, powers of attorney, or other legal decisions.

Undue influence is more than a person encouraging or persuading the will-maker to do something. For undue influence to occur, the will-maker must not be acting freely. The will-maker’s free will must be overcome by this pressure. This pressure could come in the form of physical violence, verbal pressure, psychological pressure, or fear. Pressure can be subtle and be hard to detect from the outside.

A will-maker who is vulnerable is more likely to be subject to undue influence. Vulnerability could occur because the will-maker has reduced decision-making capacity, has an illness or disability, or is isolated. Keep in mind that if a person has reduced capacity, they may still have the capacity to make a will but be impacted by this reduced capacity in a way that makes them vulnerable to undue influence.

It can be hard to detect the difference between a person applying undue influence and a person assisting a loved one to make difficult decisions. Most people make important decisions by consulting with people they trust. A person with reduced capacity or communication differences may need a supporter to accompany them to appointments to help them communicate effectively with the professional. These kinds of support and assistance occur every day and are not undue influence. A person has a right to have a supporter help them make decisions and communicate. However, this supporter cannot apply undue influence to make the will-maker do something that the will-maker does not want to do.

 

Signs of Undue Influence

Undue influence will look different in each situation. However, there are some signs you can watch for that can indicate increased susceptibility to undue influence or signal that undue influence is occurring.

Physical or Behavioural Signs in the Will-Maker: The will-maker may exhibit some signs or symptoms that can be a red flag or indicate increased susceptibility. The will-maker may have reduced capacity, and illness, or a disability. The will-maker may show signs of shock, depression, anxiety, confusion, or memory problems. The will-maker may show other signs of abuse, such as unexplained injuries or yielding to another person.

Isolation: The will-maker may not have close contact with many family or friends. The will-maker may be kept away from loved ones, be living in a remote location, or have a communication or language barrier.

Dependence: The will-maker may be highly dependent on another person for personal care, medical care, transportation, financial support, or emotional support.

Having high trust in a beneficiary: A will-maker may be supported by a person who is a beneficiary in the will. However, it is a red flag if the will-maker is putting trust in a new person in their life, or a beneficiary is in a position of trust such as a caregiver, lawyer, or health care provider.

Unusual Will-Making Circumstances: Watch for changes to the will that are sudden, frequent, or significantly different from previous wills. The will-maker may be overly relying on notes, or someone is speaking on their behalf.

Behaviours of the Influencer: The influencer could either be overly helpful and polite or be controlling and rude. The influencer may frequently contact the will practitioner. The influencer will likely insist on being present for meetings with the will practitioner. The influencer may be experiencing financial difficulties.

Practice Checklist for Wills Practitioners

When you are meeting a client to discuss drafting a will, the best practice is to interview the will-maker alone. This may not be possible if the will-maker needs a translator or needs communication assistance. If it is possible to interview the will-maker alone, explain that it is important to speak to the will-maker alone because you are acting only for the will-maker, the meeting is confidential, and you need to determine the will-maker has the capacity to make the will.

If you suspect undue influence is occurring, consider the following practice suggestions:

  • Ask open ended questions to investigate the older adult’s true wishes
  • Explore if the older adult is in a relationship of dependence or trust which the influencer may be exploiting
  • Explore if the older adult is being abused or neglected
  • Consider obtaining third party information, with the will-maker’s consent, such as information from a financial professional or health care provider
  • Consider whether the older adult has the decision-making capacity to make a will
  • Keep detailed notes of your interactions, any red flags, the circumstances, and your conclusions

If you think it is more probable than not that undue influence is present, do not accept instructions to draft the will. A will or term in a will that is a product of undue influence is void.

To see the full undue influence practice checklist, see the BCLI’s Undue Influence Recognition/Prevention Reference Aid.

 

Other Financial Abuse

Undue influence is one type of financial abuse. Financial abuse is one of the most commonly reported forms of elder abuse in Canada. Financial abuse is the illegal or improper use of money, assets, possessions, property, and legal documents. Other types of financial abuse include:

  • stealing money
  • coercing an older adult to open a joint bank account
  • selling or transferring property without permission
  • misusing the older adult’s home
  • misusing substitute decision-making powers under a power of attorney, representation agreement, trust, or guardianship


Getting Help for Elder Abuse

If undue influence has occurred, this fact can be used to invalidate the will. As undue influence is a form of abuse, it can also be reported through elder abuse reporting channels. What help can be provided to an older adult who is being abused or neglected depends on the adult’s capacity and the level of danger they are in.

If the adult is in immediate danger, call 911.

In BC there is no requirement for the general public to report abuse or neglect of an older person. BC has adult protection legislation, the Adult Guardianship Act, which allows anyone to report suspected abuse or neglect of any type. Reports can be made to the local Designated Agency. Suspected financial abuse, including misuse of substitute decision-making authority, can be reported to the Public Guardian and Trustee (PGT).

If the older adult has decision-making capacity and does not have a disability that would prevent them from seeking support or assistance, there are no actions which can be taken if the adult refuses help. However, you may still be able to connect the adult to helpful services.

Designated Agencies Contacts:

Vancouver Coastal Health/Providence Health: 1-877-732-2899

Fraser Health: 1-877-732-2808 

Island Health:

South (Victoria): 1-888-533-2273

Central (Nanaimo): 1-877-734-4101

North: 1-866-928-4988

Interior Health: 1-844-870-4754

Northern Health: 1-844-465-7414

Community Living BC: contact your local CLBC office

 

Public Guardian and Trustee

Assessment and Investigation Services: 1-877-511-4111

 

Seniors First BC

Seniors Abuse and Information Line: 1-866-437-1940

Website: seniorsfirstbc.ca

 

Resources for Drafting a Will

Finding a Lawyer or Notary:

The referral service helps the public contact a suitable lawyer and receive a free 30-minute consultation.

The website allows the public to search for a Notary Public by location, language spoken, or name.

 

Legal Clinics:

This clinic helps low-income people over 55 and people with terminal illnesses draft wills, representation agreements, and enduring powers of attorney.

This clinic helps people with low incomes over 55 with drafting wills, representation agreements, and powers of attorney.

This clinic helps low-income people draft wills and personal planning documents if their assets are under $25,000 and they do not own real estate.

This clinic helps Indigenous people living in the lower mainland with low incomes draft wills, representation agreements, and powers of attorney.

This clinic helps people in Victoria with low incomes with a variety of legal issues.

The clinic helps people in the interior with low incomes draft wills, representation agreements, and powers of attorney.


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