The Psychological Ramifications of Undue Influence

To speak with an experienced probate law attorney, please contact the experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or at JMaya@Mayalaw.com.

Undue influence refers to a person's free will being usurped by the will of another. The problem is of significant concern when dealing with deeds, trusts, and wills of the elderly or the debilitated. Frail individuals with significant financial assets are vulnerable targets for persons seeking advantage. When such manipulations occur, the consequences can be devastating.

Manipulating a person's free will is essentially a psychological phenomenon. As such, a firm understanding of the psychological processes that underlie undue influence can be of enormous benefit to the attorney involved in these matters. This is especially so given the burden of persuasion inherent in these cases, the fact that the attorney may be forced to rely primarily on inferential and circumstantial evidence, and the task of having to state explicitly and convincingly how undue influence unfolded in the matter at hand.

This article will present a model for understanding the psychological variables that can produce the improper substitution of one person's will for that of another. Some practical implications of the model will be provided as well.

A Model of Undue Influence

Although many pathways lead to undue influence, a simple model can be constructed to understand its genesis by considering three classes of variables. These are

• predisposing factors,
• vulnerability enhancers, and
• execution variables.

Simply put, certain characteristics make an individual susceptible to being manipulated (predisposing factors), that if nurtured "properly" (vulnerability enhancers) are likely to produce the desired outcome (execution variables). To understand the development of undue influence, how these factors operate, interact, and overlap must be considered.

Predisposing Factors

In tracing the historical course of behavior, it is important to consider those variables that increase the likelihood that such behavior will appear if the right conditions are subsequently provided. These are known as predisposing factors. Such variables render a person susceptible; by themselves, they do not cause the behavior of interest to appear. In the case of exploiting an individual to transfer assets to the benefit of the exploiter, a variety of characteristics can increase an individual's risk for being successfully manipulated. Some of these include:

Death of a Spouse. Undoubtedly, not all individuals who lose a spouse become victims of undue influence. But in the case of a person with a history of being highly dependent on his or her spouse for key decisions, the death of that loved one leaves a significant void. Such individuals may have a particularly hard time making decisions. As such, a person pained to make decisions may be very attracted to an individual who places him or herself in a position to help make those decisions. If the wrong person assumes this role, the surviving spouse becomes especially vulnerable to undue influence.

. Depression. When individuals become depressed, they not only experience intense negative feelings, they may also suffer from poor mental functioning--which may include problems with attention, concentration, memory, and other cognitive functions. In addition, depressed persons often suffer from sleep disturbance, lack of energy, apathy, and social withdrawal. These experiences make the depressed person more susceptible to abandon efforts that require significant thought and/or action. In turn, this may increase his or her vulnerability to the influence of another.

Isolation. Physical or social isolation from family and/or friends can lead an individual to become highly susceptible to manipulation by a devious person. Without the benefit of others to bounce ideas off and gauge the value of his or her own thinking, the power of another's thoughts about how the isolated individual should think, feel, and/or act increases significantly.

Social Attention. Individuals vary in their psychological need for others' attention. Those who are very attention-requiring may be at greater risk for manipulation by those who provide the attention sought. This is especially so for the attention-seeking individual who suffers from increased isolation and/or feelings of loneliness.

Anxiousness. Anxiety is an unpleasant psychological state. A person riddled with anxiety is highly motivated to eliminate the anxious sensations. Accordingly, anyone who can reduce the sufferer's anxiety is likely to become highly valued. It is here that the vulnerability to exploitation can incubate. An individual who worries excessively that bills may not be paid on time experiences relief when they are. The frail elder who believes that he or she may be placed involuntarily in a nursing home finds comfort in assurances that this will not happen. Anxiety removal is a powerful psychological motivator that can strengthen the hand of a person who intends to manipulate the anxious individual.

Dependency. Those who become dependent on others for physical assistance may become prone to manipulation by their helpers. Such dependency may not necessarily be restricted to physical requirements. Strong dependence on others can develop for a variety of important psychological needs, such as the need for mental stimulation, social connectivity, and emotional attachment. The more dependent the individual becomes, the more likely he or she could be affected by the desires of the person being depended upon.

Diminished Mental Capacity. Various mental functions can deteriorate in effectiveness, particularly with age, and thereby increase the potential for exploitation by a devious person. A man who realizes he is having trouble thinking clearly may look to someone else to think things through for him. A woman having difficulty remembering things may come to depend on someone else's memory. When someone has diminished mental functioning but is not aware of it, the risk for being exploited increases significantly.

Undetected Pathology. In some situations, a person may be experiencing a disease process that goes unnoticed by others. This occurs often, for example, when an elderly person who lives alone is in the early stages of Alzheimer's. Another example is undetected depression--a common problem among the elderly and the medically ill. Both of these disorders are associated with reduced mental functioning that may not be readily apparent; both increase a person's risk for being manipulated by a devious individual.

Vulnerability Enhancers

An individual vulnerable to potential exploitation is best protected when cared for by those with genuine concern for that person's well being and who have no agenda to extract additional financial benefits from the vulnerable individual. Unfortunately, those at risk who are placed in the wrong hands may be maneuvered to perform acts that at one time might have seemed unimaginable. Generally speaking, there are at least three types of individuals who will take advantage of a vulnerable person.

First is the con artist. He or she knows there is a pot of gold intended for someone else and sets out to steer it elsewhere--into the con artist's own hands. This individual usually has prior experience exploiting others.

The second type is the psychologically damaged person who seeks self-gratification by manipulating others. This may include disturbances such as the need to feel power over others, enjoying the suffering of others, or some other psychopathology.

The third type of perpetrator is one who did not originally set out to exploit the vulnerable person, but who over time found the fruits of temptation too great to resist. In the course of this "transformation," such individuals may develop self-satisfying rationalizations for their manipulative activities (e.g., "I deserve this for all I have done").

Regardless of the type of person who may exploit a vulnerable individual, certain common methods are used to foster the manipulation. These vulnerability enhancers include:

Increasing Dependency Needs. In some cases, a devious person may find it relatively easy to increase the dependency needs of a vulnerable individual. An extra pill or two, and an over-medicated person can become increasingly dysfunctional. A diet systematically devoid of essential nutrients can lead to fatigue. A person with visual impairment will be unable to perform certain tasks if his or her eyeglasses are often "misplaced." As the need for assistance increases, the opportunities for exploitation multiply.

Relationship Poisoning. When one person unjustly undermines another person's relationship with a third individual, that process is known as relationship poisoning. See Ira Daniel Turkat, Relationship Poisoning in Custody and Access Disputes, 13 AM. J. FAM. L. 101 (1999). Damaging the relationship between a vulnerable individual and an intended beneficiary can facilitate a manipulative person's drive to divert the vulnerable person's assets. Here, the manipulator may engage in direct attacks upon the targeted individual (e.g., tell upsetting lies about the intended beneficiary) and/or do so indirectly (e.g., not give messages to the vulnerable person whenever the intended beneficiary calls). If carefully implemented with other methods (e.g., isolation), a lifelong relationship can be poisoned in a relatively short period of time.

Self-promotion. One way to increase influence over another is to demonstrate one's indispensability. This can be accomplished by the schemer's identifying tasks that the vulnerable person finds difficult or troublesome, performing those tasks for the person (sometimes at a higher rate than is necessary), and frequently reminding the victim how fortunate it is that he or she is present to provide these "essential" services.

Restricting Access. As noted above, the more a debilitated person is isolated, the easier it may become to influence that person. Thus, a caregiver may deliberately restrict the targeted individual from interacting with friends, relatives, and/or others who threaten the success of the caregiver's devious maneuvers.

Deceptive Manipulations. Events can be created deliberately to foster modification of a vulnerable person's attitudes, beliefs, and feelings. For example, a caregiver arranges for a friend to call while at the client's home. After the call, the caregiver explains to the client that the caller was an unknown who was trying to pull a con game that is perpetrated frequently upon on the elderly; the caregiver then details how she or he thwarted the con and reminds the targeted person how fortunate it is that the caregiver was present to provide protection.

Reinterpreting Events. A vulnerable person's emotions can also be manipulated by merely changing the way certain events are explained. For example, a physician may send a social worker to the home of a debilitated person to evaluate the patient's progress, but a devious caregiver may tell the patient that the social worker is coming to prepare a case to have the patient involuntarily committed. After frightening the client, the caregiver provides assurance that he or she won't let the social worker succeed.

Inactive Relatives. There are several reasons why relatives may not intervene when a vulnerable loved one is being manipulated. Some of these include: (1) being unaware that any manipulations are taking place, (2) being suspicious but unable to clearly document the problem, (3) being aware of the problem but feeling that it is not his or her place to intervene, and (4) being aware but feeling powerless. Regardless of the reason, the exploitation is unlikely to stop if there is no intervention.

If you have any questions or would like to speak to a probate law attorney about a will, trust, or estate matter, please contact the experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or at JMaya@Mayalaw.com.

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Source- http://www.americanbar.org/newsletter/publications/law_trends_news_practice_area_e_newsletter_home/0501_estate_probate.html