Undue influence can occur in almost any situation where one individual is extremely reliant on another. The dependence creates a set of conditions ripe for abuse, in which the caregiver is in a position to coerce and manipulate the person for whom they should be caring. The most common scenario affects individuals who are vulnerable because they are elderly and in declining health, but the families of younger people who depend on others for assistance with day-to-day tasks should also learn how to recognize signs of undue influence and some basic strategies for addressing them. If you are concerned about the potential for undue influence in your loved one’s situation, or if you suspect undue influence after a family member’s passing, as more facts have come to light, you may find it helpful to have a conversation with a South Carolina elder law attorney. Call King Law Offices at 888-748-5464 to book a private consultation.
What Is Coercion and Undue Influence?
Undue influence can occur with or without direct coercion. Evidence of coercive threats is one of several factors South Carolina courts may weigh in considering whether undue influence is or has been present in a particular situation, though there is much discussion of this in some online forums. The “is or has been” distinction is crucial partly because a family’s options for how to respond to signs of potential coercion as they develop are quite different from their choices for addressing evidence of undue influence after a loved one’s death, when disinherited individuals may feel motivated to contest the deceased person’s estate planning documents, such as his or her Last Will and Testament or the terms of a trust.
Summary of Identifying Undue Influence
Undue influence involves coercion or manipulation of a vulnerable individual, often by a caregiver, and can affect financial decisions and estate planning documents under South Carolina law.
- Undue influence may arise with or without direct threats and is frequently associated with declining mental capacity, physical dependence, or confidential relationships.
- Common warning signs include isolation from family and friends, unexplained changes to financial accounts, and revisions to estate planning documents such as Wills or powers of attorney.
- When undue influence is discovered after death, South Carolina courts may apply a rebuttable presumption of undue influence in certain fiduciary or confidential relationships during a Will contest.
King Law Offices provides legal services across South Carolina related to estate planning, probate disputes, elder law concerns, and undue influence matters.
Watching for Signs of Undue Influence: Protecting Loved Ones From Abuse
There are a number of circumstances that can make an individual vulnerable to undue influence. One of the most commonly recognized vulnerabilities is declining mental capacity, most often in an elderly individual. For this reason, undue influence may frequently overlap with instances of elder abuse, and some of the warning signs of potential undue influence overlap with “red flags” for elder abuse as well.
Bear in mind, however, that much younger individuals can still be susceptible if they are either mentally incapacitated or physically dependent on the person exercising undue influence. While we typically think of undue influence as a matter of manipulative persuasion, the threat of physical harm is always a possibility in instances where the vulnerable person depends on the influencer for basic physical and material needs. Always consider any list of signs to look for in light of your own loved one’s individual circumstances.
Isolating the Victim
You may have heard that cutting off a victim’s connections with friends and family is a classic technique used by abusers in domestic violence cases. The same basic principle applies when an unscrupulous party seeks to gain greater control over its target. Not always, but often, the “influencer” will seek to limit the interactions the influenced individual has with others who might recognize signs that all is not well, or even with close friends or family members whose presence might make the target of the influence feel less alone.
Restricting a victim’s interactions with other people serves two main purposes for someone seeking to exert undue influence: It reduces the chances that the undue influence will be discovered and stopped, and it increases the victim’s reliance on their manipulator. Take a closer look at your loved one if:
- Stops taking calls
- Often hangs up early or abruptly
- Seems reluctant to speak openly when their caregiver is present
- Avoids having “unsupervised” interactions, even with family members or friends of many years
As South Carolina’s Court of Appeals noted in its 2020 decision in the matter of Gunnells v. Harkness, victims of undue influence may show signs that they are afraid both of speaking in front of their caregiver and of having the caregiver find that they have entertained company alone. Hints that a caregiver does not like company, or will disapprove of the vulnerable person talking while the carer is not present, can be especially strong indicators of potential trouble.
Changes to Financial Accounts
Individuals make changes to their financial arrangements at various stages of life, for a host of reasons. They transfer money from one bank to another because they are unhappy with the service they have been receiving; they add a son or daughter to their checking account to make sure someone can access the funds and pay bills in case of a sudden decline in personal health; they remove a spouse or a child from their savings accounts because the individual has developed a serious spending problem. These changes are often signs of nothing more sinister than the quotidian adjustments we all make to protect our loved ones and keep our own lives running smoothly.
Changing the Names on Accounts
When these changes occur without warning or explanation, and particularly when they are made by an elderly or otherwise vulnerable person who has previously maintained the same accounts and access for an extended period of time without any indication that they are less than satisfied with the way their assets are held and managed, the changes may be cause for concern. Context matters, so look for signs that the vulnerable person is replacing multiple family members with a single individual on whom the person has begun to rely more and more.
Changing Financial Institutions
Another potential “red flag” can be moving assets to a financial institution recommended by an influential caregiver who already has personal accounts there. Transfers of this type can be a genuinely innocent matter of convenience, but they can also represent an attempt by the caregiver to consolidate their hold on a victim. If a member of your family is making uncharacteristic changes to his or her ordinary financial habits in a way that grants a single person greater control over the assets, a conversation with an attorney from King Law Offices may help you determine whether the specifics of the situation merit closer scrutiny.
Changes to Significant Estate Planning Documents
Estate planning documents that are likely to see major changes when a manipulator is exerting undue influence over a vulnerable individual fall into two main categories:
- Asset management and transfer
- Legal authority
The classic example of undue influence in South Carolina law arises in instances where a vulnerable person changes the terms of his or her Will under pressure from a caregiver who is coercing or manipulating the individual. Typically, the goal of this kind of undue influence is to redirect all property left in the individual’s Will to the manipulator, so that he or she becomes the beneficiary of the entire estate. However, it is important not to overlook estate planning documents besides the Will.
Power of attorney, in particular, grants the “agent” authorized in the document enormous power over the financial accounts and personal affairs of the principal. While it is not particularly uncommon for an individual preparing his or her estate plan to create more than one power of attorney – for instance, a spouse and a long-term friend, or each of the principal’s adult children – changes to this type of document can be concerning when the changes increase the principal’s reliance on a single person, who is in a position of even greater influence as a result of the alterations.
What If You Discover Undue Influence Too Late?
Sometimes, unfortunately, family members will not recognize the signs of undue influence until after the individual suffering from the manipulation has already passed away. In these instances, it may be necessary to contest the terms of a Will that has disinherited other family members in preference to the influencer.
As a 2006 article in the South Carolina Law Review notes, courts in this state have generally applied a presumption of undue influence when there is a “confidential” or fiduciary relationship between the person accused of undue influence and the person who is alleged to have been a victim of manipulation. Proving the existence of such a relationship may be one of the more effective steps families can take toward invalidating a late revision of their loved one’s Will, but it is important to note that the presumption is rebuttable. Speaking to an attorney before filing a contest of the Will on the grounds of undue influence may help you to gain a clearer understanding of the kinds of evidence South Carolina courts may accept as indicators of manipulation.
Why Just Showing Up Matters
Proving undue influence in court can be extremely difficult, so it is important to prepare accordingly. If your loved one is still living, often one of the most important interventions you can take to protect them as well as your own interests is simply to show up. Having multiple family members regularly present and actively involved makes it much more difficult for an unscrupulous manipulator to gain an exclusive hold over their potential victim.
Frequent interactions, especially if not held to a strict schedule or announced ahead of time, also provide family members and close friends with multiple opportunities to observe their loved one’s living conditions and interactions with anyone who is in a position to take advantage of them. If you are in the unfortunate situation of recognizing undue influence after the fact, family members’ cumulative experiences may form the starting point for building a case against the manipulator.
Speak With an Attorney from King Law Offices
Recognizing undue influence can be difficult. Even the American Bar Association (ABA) has said the concept is difficult to define. Legal guidance can often help in evaluating potential causes for concern and developing strategies for addressing signs of undue influence. To speak with an attorney about how to recognize and address the signs of undue influence, schedule a consultation with a member of the King Law Offices team. A skilled attorney can help answer questions you may have about the process. Call 888-748-5464 to find a time.
Helpful FAQs Regarding Undue Influence
The following frequently asked questions address common legal and practical issues related to recognizing and addressing undue influence.
What Is Undue Influence Under South Carolina Law?
Undue influence refers to manipulation or coercion that overcomes an individual’s free will, leading to decisions they would not otherwise make. South Carolina courts evaluate multiple factors, including vulnerability, dependence, and the nature of the relationship between the parties.
How Is Undue Influence Different From Coercion?
Coercion often involves explicit threats, while undue influence may rely on subtle pressure, manipulation, or exploitation of trust. Undue influence can exist even when no direct threats are present.
Who Is Most Vulnerable to Undue Influence?
Elderly individuals with declining mental capacity are commonly affected, but younger individuals may also be vulnerable if they are physically dependent or mentally incapacitated. Reliance on a single caregiver can increase susceptibility.
What Are Common Signs of Undue Influence?
Warning signs may include isolation from friends or family, reluctance to speak openly around a caregiver, and sudden changes in behavior. Financial and estate planning changes without clear explanations can also indicate potential concerns.
Why Are Financial Account Changes a Red Flag?
Uncharacteristic changes, such as adding or removing names from accounts or transferring assets to new institutions, may suggest manipulation. Context matters, particularly when changes increase one person’s control over assets.
How Can Estate Planning Documents Be Affected by Undue Influence?
Documents such as Wills, trusts, and powers of attorney may be altered to favor the influencer. Powers of attorney are especially significant because they grant broad authority over finances and personal affairs.
What Happens If Undue Influence Is Discovered After Death?
Family members may consider contesting a Will or trust if undue influence is suspected. Courts may apply a presumption of undue influence in certain confidential relationships, although that presumption can be challenged with evidence.
How Can Families Help Prevent Undue Influence?
Regular involvement by multiple family members can reduce isolation and limit opportunities for manipulation. Unscheduled visits and ongoing communication may help identify concerns early.
How Can King Law Offices Assist With Undue Influence Matters?
Consider visiting with an experienced attorney at King Law Offices to learn more about legal options related to undue influence, estate planning disputes, and probate litigation. The team works to ensure clients understand relevant laws, potential evidence considerations, and available legal paths under South Carolina law.
