Submission of J Walker – ALRC Elder Abuse Inquiry - 2016

UNDUE INFLUENCE AND FINANCIAL EXPLOITATION with a case summary.

(Information sourced by Margaret Singer)

Undue influence is a form of psychological abuse, related to the phenomena of mind control defined as the substitution of one person’s will for the true desires of another, undue influence generally occurs when the victim is incapacitated by cognitive impairment, physical or mental illness or some other vulnerability such as recent bereavement.

Undue influence is usually accompanied by fraud or duress by the perpetrator, generally someone in a position of trust or authority, who seeks financial gain at the expense of the victim.

How does undue influence occur?

According to Dr. Margaret Singer, a psychologist with expertise in mind-control and brain-washing, the perpetrator usually takes deliberate actions to gain control of the victim.

These actions include:

Isolating the victim:

• The abuser attempts to cut off access to the victim by other persons by withholding or controlling phone calls, visits and mail. The perpetrator tells callers and visitors that the victim is asleep, busy, or too unwell for visits and calls.

Creating a siege mentality:

• The abuser convinces the victim that no one else cares about the victim, and that family members, clergy, doctors and others are trying to put the victim in a nursing home.  The perpetrator reassures the victim that only the abuser will take care of the victim.

Creating dependency:

• The perpetrator manipulates the victim’s activities, food and medication to create dependency on the abuser. This may include confining the victim to bed, over medicating the victim, or providing inadequate food and liquid that result in physical deterioration.

Promoting powerlessness:

• The abuser uses his power to convince the victim that only the abuser can care for the victim. The abuser may threaten the victim with harm, neglect or abandonment if the victim doesn’t comply with the abuser’s actions and wishes.

Keeping the victim unaware of reality:

• Because of the process of abuse, the victim, in the role of a captive, becomes bonded to the abuser as do hostages, prisoners of war, incest victims and abused children.

Who is likely to be a victim of undue influence?

• Elderly people with assets such as their own homes, stocks, bonds, and other material and financial assets, are most likely to become victims of undue influence due to their life circumstances. This can include ill health with physical dependency, cognitive impairments, grief and bereavement, and decreased independence in such activities as shopping, bill paying and the need for transportation.
• Mentally ill individuals are also at risk for victimisation, as are those with developmental delays, chemical dependency, and other such conditions that result in need for assistance with various activities.

What are the risk factors for being a victim of undue influence?

• There are a number of identified risk factors that predispose people to being victims of undue influence and financial exploitation.

These include:

• Being elderly, mentally ill, physically disabled, and/or cognitively impaired.
• Living alone, especially in own home rather than in an apartment or condo.
• Being recently bereaved. (Some exploiters read obituaries and prey on widows and widowers).
• Being dependent in transportation and/or shopping.
• Having few local family or friends.
• Being isolated from community activities and health care services.
• Being naive and overly trusting and open with strangers.
• Lacking knowledge about own finances.
• Not having reputable assistance with financial matters.

Who is likely to be a perpetrator of undue influence?

• Perpetrators almost always begin with a close and trusting relationship with the victim and most often perpetrators are family members.
• Family members sometimes have a financial duty to the victim as their attorney-in-fact, and use that relation-ship to take financial advantage of the victim. Authorities have found that oftentimes there is a family member who lives with the victim, sometimes an adult child who never left home, and that person is in a prime position to isolate the victim from others.
• Unrelated perpetrators, such as accountants, trustees, attorneys or guardians, may have a financial duty to the victim.
• Other times the perpetrators are housekeepers, caregivers, neighbours, nursing personnel, physicians, church members, or even clergy.
• Occasionally these people deliberately develop a close relationship with the victim with the goal of financial gain.
• Some people “make their living” preying on elderly people and go from one victim to the next.
• Young women may become “girlfriends” of elderly men, and young men may woo older women in an effort to become their “significant others.” The appearance of a new young “friend” in an elder’s life is often causing for concern.

What are some signs of undue influence and financial exploitation?

While it may be difficult to identify a pattern of isolation and undue influence in the early stages of an exploitative relationship, there are certain characteristics that when considered together should raise questions about the integrity of the relationship.

These falls into three categories:

(A) Victim behaviour (B) perpetrator behaviour (C) financial implications.

Victim behaviours that may be observed include:

• Victim makes loans or gifts to someone who needs money for car repairs, surgery, etc.
• Victim is never left alone with anyone.
• Victim is pressed into transactions without being given time to contact advisers.
• Victim appears to be have been coached when meeting with attorney, accountant, etc.
• Victim seems reluctant to discuss matters that were routine with formerly trusted professionals or family.
• Victim seems sedated or appears to be intimidated or controlled by perpetrator.

Behaviours demonstrated by the perpetrator may include the following:

• Perpetrator speaks for the victim and doesn’t allow the victim to speak even when present.
• Perpetrator doesn’t appear to have any other means of support other than the victim’s income.
• Perpetrator has a controlling and defensive attitude if questioned about relationship to victim.
• Perpetrator denies access to victim by formerly trusted persons including victim’s family, friends, Attorney etc.
• Perpetrator moves into victim’s home and promises to care for them in exchange for property upon their death.
• Perpetrator convinces victim that family members, friends and other previously trusted persons are trying to put victim in an institution and take their assets.
• Perpetrator creates alliance with victim’s physician by insisting that only the perpetrator can successfully care for the victim.
• Perpetrator takes victim to a new attorney to make changes to estate planning documents, convincing the victim that previous attorney wasn’t looking out for victim’s best interest

Financial issues that should raise red flags to the possibility of undue influence and financial exploitation include the following:

• Change in bank or other financial institutions.
• Financial activity inconsistent with the victim’s habits and abilities, such as ATM withdrawals.
• Numerous withdrawals or checks to cash, often in round numbers such as $50.00, $100.00, $1,000.00, etc.
• Increased activity on credit cards for purchases not generally made by victim, i.e. gasoline, music and or CD’s, electronic stores, etc.
• Withdrawals made from savings in spite of penalties.
• Change in account beneficiaries’ attorney, etc.
• New accounts and/or new authorised signers on accounts.
• Change in financial planning documents, such as wills, trusts, powers of attorney, especially when there is question about victim’s capacity and/or the will or trust is in favour of a new or much younger “friend.”
• Changes in property title, quitclaim deeds or new or refinanced mortgage.
• Changes in solicitor, stockbroker, physician or other professionals.

How does one deal with suspected undue influence and financial exploitation?

If there were an easy answer to this question, the prevalence of undue influence and financial exploitation would be less and when it occurred, it would be more easily resolved.

Dealing with these issues requires that people working with vulnerable adults be highly alert to the possibility of victimisation and thoroughly scrutinise the relationships and financial transactions of their vulnerable clients.

While many of those working with the elderly assume that caregivers and others involved with vulnerable adults have altruistic motives; the prevalence of abusers is surprisingly high. Some authorities estimate that as many as half of all vulnerable adults may be preyed upon.

Wilber and Reynolds, researchers at the University of Southern California, found that “anywhere from 33% to 53% of elder abuse victims are believed to experience financial abuse.”

• When any of the warning signs listed above are identified, it is imperative that a trusted family member or professional – or even better, several people working together – insist on a private visit with the suspected victim.
• Social workers, especially those with expertise in vulnerable adult issues, can be useful in evaluating these situations and documenting findings of victimisation.
• It is important to realise, however, that a skilled perpetrator can cause the victim to develop strong loyalty to the perpetrator, a phenomena known as the Stockholm syndrome based on bank hostages in Stockholm who were brainwashed by their captives.
• The client’s attorney should be contacted and notified about legal changes that were made by the perpetrator’s attorney.
• It is often necessary to contact authorities such as Adult Protective Services or police agencies to force the perpetrator to allow a visit from relatives or professionals such as an attorney, accountant or doctor.
• In some cases, the victim can be hospitalised for his/her own protection, and interviewed by authorities in the protected environment.
• Thorough documentation of any and all signs of undue influence is helpful in establishing the pattern of isolation, siege mentality, dependency and powerlessness that allows the perpetrator to gain control of the victim.
• When they receive timely notification of undue influence and financial exploitation, law enforcement officials are willing to prosecute this type of abuse and exploitation.

Undue Influence & Financial Exploitation - A Case Summary

Mrs. J, 88, was a recent childless widow when a neighbour she had known casually began to befriend her.

Mr. T was in his mid-50s, married, unemployed and received worker’s compensation for a back injury. He had a lot of free time and began visiting Mrs. J daily.

Mr. J had done all the driving before he died, so Mr. T drove her to the grocery store, beauty shop, doctor’s appointments, etc. Initially he used his own car but soon asked to drive Mrs. J’s car since it was a fairly new Cadillac. Mr. T kept the Cadillac tuned up and polished to a high shine, and less than six months after Mr. J’s death, Mr. T became the owner of the car.

As the seasons changed, Mr. T took care of Mrs. J’s home and yard maintenance, putting up and taking down storm and screen windows, trimming shrubbery, cutting grass and removing snow. Mr. T’s wife, Mrs. T., began helping Mrs. J with housework such as cleaning and laundry.

The T’ visited with Mrs. J at least daily, often bringing in a meal or taking her out to eat. Mrs. J always insisted on treating the T’s to meals out since they were so nice and did so much for her.

Mrs. J had a niece who lived an hour away with whom she had always been close, but she gradually grew suspicious of her niece and discouraged her from visiting.

The T’s insinuated that the niece wanted to move Mrs. J from her home into an assisted living facility or nursing home, and Mrs. J was adamant about remaining in her home.

Mr. T continued driving Mrs. J to the grocery store, beauty shop and doctor, but was less willing to take her to church services or her weekly church circle group. Gradually Mrs. J became separated from her church family and her only contacts were with the T’s.

Suspicions about Mrs. J’s situation were aroused when her bank trust officer received paperwork from a new attorney informing the trust officer that Mrs. J had changed her financial planning documents in favour of Mr. and Mrs. T and was moving her assets to a different bank.

The trust officer attempted to discuss the matter with Mrs. J, but when he called her, she refused to talk or meet with him. He was surprised to find her so distant and almost paranoid on the phone, and was concerned about her mental stability.

Matrix (equivalent to Australian ACAT) was retained to assess Mrs. J’s well-being and her capacity to make the changes she was requesting through her new attorney.

When Matrix contacted the new attorney, he said that he would certainly co-operate with an evaluation, as he himself felt uneasy about Mrs. J’s situation but couldn’t put a finger on just why.

When the Matrix nurse arrived at Mrs. J’s home, Mr. and Mrs. T were present and were highly resistant to any of the nurse’s questions. They also refused to let Mrs. J sign the professional release form that would allow the nurse to obtain medical information from Mrs. J’s doctor.

Mrs. J was also resistant to answering questions and insisted that the Ts were her very best friends who helped her with everything.

Based on the Matrix nurse’s information and recommendations, the bank trustee sought legal counsel regarding the validity of the new financial planning documents.

In addition, an evaluation was scheduled with a geriatric psychiatrist and Mrs. J was informed by the new attorney that she had to attend the appointment before her new documents could be processed.

The geriatric psychiatrist insisted on meeting privately with Mrs. J and felt that she had been coached.

He also found that she had little knowledge of her assets, she did not know who her heirs were, and that she appeared to be controlled by the Ts.

Based on his report, the bank refused to honour the new documents and the case went to court.

Following a trial of several days in which the Matrix nurse and the geriatric psychiatrist were primary witnesses, the judge found that the Ts had unduly influenced Mrs. J and had exploited her financially by appropriating her Cadillac, transferring her homestead to themselves, and attempting to gain control of her assets.

The new documents were found to be invalid and the T’s were charged with financial exploitation of a vulnerable adult, fraud and other related charges.