Blogs from July, 2009

I recently read the following article, which was written by Dr. Ira Turkat, a psychologist in Florida, and found it fascinating because it addresses many of the issues I encounter in the undue influence cases that I litigate.  With Dr. Turkat’s permission, I am reproducing this very insightful article on my blog.

Psychological Aspects of Undue Influence
By Ira Daniel Turkat

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 an 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

1. predisposing factors,

2. vulnerability enhancers, and

3. 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 of 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 of 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 overmedicated 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 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.

Execution Variables

The vulnerability enhancements described above foster a susceptible person’s trust of, reliance upon, or submission to the manipulator. This transformation of the targeted individual facilitates a devious person’s effort to maneuver assets intended for someone else to the devious person. To actually execute the desired transactions, the schemer must be able to seize the “right” moment to steer the exploited person.

When exactly is the “right” moment? It is precisely when the prior efforts of the manipulator to coerce a vulnerable person mature to the point at which the dependent individual is amenable to complying immediately with the exploiter’s direction to execute a redirection of assets. Although the words and behaviors may vary from case to case, their timely use to take advantage of the vulnerable person’s trust, dependency, or submissiveness yields the same outcome: the transfer of assets is executed. These “execution variables” may include:

•   Taking Advantage of a Particular Mental State. In a cognitively impaired person, the level of dysfunction may fluctuate. Attuned to these changes in the impaired individual’s mental status, the manipulator waits for the best moment to “strike.” In some cases, this may be when the person is most alert; in others, it may be when the individual is most confused. The key is that the schemer uses (1) his or her knowledge of when the person is most vulnerable and (2) the power of the relationship that the exploiter has generated to seize the client’s assets during an opportune period for
execution.

•   Increasing the Vulnerable Person’s Discomfort. One way to create the “right” moment is to decrease the client’s comfort level so that an aversive psychological state is experienced; then, the exploiter offers the client relief if he or she engages in the transactions desired by the schemer. For example, a cognitively ailing person complains frequently of being hot. The manipulator subsequently shuts off the air conditioning deliberately. When the vulnerable person’s complaints about the temperature increase significantly, the pitch is made: “All we have to do is have you sign here, and then we can get the air conditioning fixed.” Other aversive psychological states that can be induced to facilitate usurping the susceptible person’s will include stress, fatigue, pain, and fear.

•   Pressuring the Client. Having gained the vulnerable person’s trust and having set up a campaign to overpower the client’s will, when the manipulator senses that the client is most malleable, he or she may pressure the client to institute the desired redirection of assets. This may take many forms, ranging from “This is what you really wanted to do” to “This is the only way you can protect yourself and you must do it right now.” The pressure is typically molded idiosyncratically to “push the buttons” of the person at risk. Creating an atmosphere of urgency, guilt, or fear can provide potent motivation.

•   Puppeteering the Client. In some cases, the level of trust, dependency, or submissiveness becomes so well established over time that the vulnerable individual mindlessly follows whatever demand or request the exploiter makes.

Regardless of the type of execution variables employed, in some cases, the transfer of assets may involve only one “right moment,” while in other cases there may be multiple occurrences.

Practical Issues

The practical implications of the psychological information presented above are considerable. Although space limitations do not permit a full review, some examples are provided below.

The three classes of variables that converge to produce undue influence can be used to present a clear explanation of how a person was unwittingly manipulated. Properly painting the picture of how a case of undue influence unfolded is vital to successful litigation. By presenting predisposing factors, vulnerability enhancers, and execution variables as standard psychological “stages” in which undue influence develops, along with specific illustrations from the case at hand to match these variables, a judge or jury can easily grasp what has happened.

Understanding the types of individuals that exploit the free will of others has implications for discovery and other activities. For example, a con artist is likely to have a devious history, while a “transformed” relative who could not turn down temptation is less likely to have this type of background. Such information can be of value in directing certain discovery efforts. To illustrate further, the con artist is usually less prone to feelings of guilt, while the “transformed” relative may be more likely to experience some degree of guilt. One can use such information in formulating an approach to the examination of the witness. It is also useful to note that awareness of whether the exploiter experiences guilt or not may be helpful at some point in the process of settlement negotiations.

Preparation of an undue influence case can require considerable psychological sophistication. For example, a person who has been manipulative and devious in rerouting another’s assets may act similarly under examination. This means that special attention must be given to the lines of questioning employed. In some situations, one may need creative ideas to set “traps” for the manipulative individual. In addition, specialized psychological knowledge may be vital in preparing an undue influence case in which the exploited individual is presented as having been mentally intact but actually was experiencing cognitive deficits. This can happen, for example, with a variety of medical conditions—some of which can even fool the treating physician. To illustrate, consider diabetes, a well-known disease. Unfortunately, many health professionals are unaware that some diabetics can experience significant cognitive deficits. The same is true for certain cardiac patients, Parkinson’s sufferers, those on dialysis, and others. The attorney armed with psychological knowledge about these lesser-known cognitive abnormalities may find such information quite valuable in litigating pertinent undue influence cases.

Conclusion

Psychological factors play a critical role when a vulnerable person is manipulated unwittingly to divert his or her estate away from intended recipients and to the benefit of the manipulator. Proper investigation, documentation, and presentation of these factors are integral to the successful litigation of a case involving undue influence. At times, a psychologist with specific expertise in this area may be of substantial help in preparing the undue influence case.

It is hoped that the model presented in this article has the potential for being applied in a preventative mode. Attorneys with vulnerable clients may find themselves at times in a position to discuss some of the perils and potential safeguards to consider if the kind of circumstances described above appears likely to be encountered. An ounce of prevention is worth a pound of cure.