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SENIOR ADVOCATE

By Liza Horvath

 

Undue Influence

 

Undue influence now has a definition.

 

 

On Jan. 1, hundreds of new laws took effect, many of them designed to benefit and protect seniors. One change surrounds undue influence, which historically has been difficult to prove in court.

 

Now, under AB 140, if it is found that someone has exerted excessive persuasion that causes another person to act or refrain from acting in a manner which results in an unfair outcome, this can be deemed undue influence and legal remedy can be sought.

 

Laws can be complex, so let me provide an example.

 

 

Johnny and Sue are adult siblings, and Mom is living alone at home. Johnny moves back home because he has lost his job but will "help take care" of Mom in exchange for rent. Over time, Johnny convinces Mom that he is the "needier" child. After much badgering, Mom changes her will to cut Sue out of an inheritance.

 

This situation happens all the time, but now the badgering has a definition — undue influence. The vulnerability of the victim, the influencer's apparent authority and the actions used by the influencer will be considered to determine if undue influence was involved.

 

On another front, the state enacted The Home Care Services Consumer Protection Act of 2013, which requires that caregivers be registered with the state and have background and health checks on record. Previously, in-home care agencies were unregulated.

 

This law is a good first step toward regulation for this growing industry — albeit a small step. Families still need to do their due diligence in checking to make sure a caregiver agency provides sufficient training and oversight of its aides. Training and management differ greatly from company to company, so ask about

the extent of training provided to employees, the code of ethics by which employees are bound and how it is enforced, the amount of reference checking the company does on its employees and the ongoing oversight. These aides will be alone in the home of your mother or father — so check them out.

 

A bill was also passed that prohibits non-government entities from using a seal or emblem to imply an endorsement from a federal or state military agency or the Veterans Service Organization without approval. Previously, companies freely used Veterans Service emblems to promote various for-profit services or products, and it was difficult to discern which services were, in fact, endorsed by the government. Seniors were led astray by the use of "official looking letterhead" by unofficial offices.

 

Additional laws were passed to protect seniors and, as more boomers enter senior-hood, we will undoubtedly see more steps taken to protect the elderly. Laws are good, but nothing is better than becoming aware of your options, doing the needed planning and identifying individuals or family who will look out for you when you need it most.

Liza Horvath has over 30 years experience in the estate planning and trust fields and is the president of Monterey Trust Management, a financial and trust management company. This is not intended to be legal or tax advice. If you have a questions call (831)646-5262 or email liza@montereytrust.com

 


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