Financial abuse of the elderly is on the rise, and the perpetrator is frequently a family member but can also be a predatory neighbour, friend, or carer.
Increases in family rifts, extended families, relatives not living locally or abroad, and the use of internet banking are some of the factors that can contribute to this issue. Anyone can be at risk, but age, disability, cognitive impairment, and poor mental health may make a person more vulnerable.
Fraud against the elderly happens more often than we might like to think and ought to be borne in mind when advising both the vulnerable client and the executors of an estate.
The abuse covers a wide spectrum of conduct, and recently we have been instructed on a number of matters where following the death of an elderly person, it has come to light that the deceased changed their Will not long before their passing to disinherit family and benefit a “friend” or neighbour.
In some of these cases, the “friend” has been inadvertently assisted by the professional practitioner by being drawn into their narrative, for example, about fictitious family disputes and their dialogue regarding the wishes of the elderly person.
It is important to recognise elderly adults don’t have to be suffering from a lack of capacity or dementia to be a victim of undue Influence.
Undue influence
Undue influence is known to occur in a relationship where the influencer has power and often has a confidential or trusting relationship. In these circumstances, elderly people are at an increased risk for excessive persuasion to cause them to act against their own self-interest.
Many frameworks for undue influence identify four key criteria:
- The vulnerability of the victim which includes medical and psychological conditions.
- The relationship with the influencer. For example a new love interest or a carer that steps up their involvement in financial matters. Changes in habits/routine of the elderly person.
- The tactics employed to persuade or dominate the elderly person. Influencers often take steps to actively take advantage of the alleged influenced individual. These may range from isolating them from others, reinforcing dependency, initiating/actively procuring legal documents, and many others. There may also be an element of secrecy or inappropriate timing such as after any major life transition, health event, or loss. Influencers often target people when they are grieving the loss of a spouse, recovering from a medical procedure, or moving into a new living situation because they require care. Socially isolated adults are particularly at risk.
- It results in financial losses for the victim and financial gain for the influencer.
While typically undue influence is raised in claims about Wills and Trusts, it can also be raised on any contractual agreement. It is important to bear in mind that practitioners who benefit financially from the “influenced” transactions, or who knew about the risks or who should have known about the risks, may be liable for damages.
Comment
In summary, it is important to identify transactions or actions that potentially are the result of undue influence and take steps to minimise the risk of others manipulating your client to benefit themselves.
If you are an executor or relative who has been affected by the actions of an influencer we would be happy to discuss the circumstances to see if we can be of assistance in making a claim.
How can we help? 
Lesley Harrison is an Associate in our expert Dispute Resolution team.
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact Lesley or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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