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The "IDEAL" Model for Undue Influence Analysis

By Bennett Blum, MD


Introduction

Do your cases involve undue influence situations? "Undue influence" is the misuse of a relationship for the purpose of taking unfair advantage of another person. This "unfair advantage" may be the result of the real or apparent authority the perpetrator has over the intended victim; the victim's inherent needs or distress; or the victim's weakness of mind. 1 The concept was created to address discrepancies in either wills or contracts that result from improper means of persuasion.

In general, undue influence refers to excessive or inappropriate manipulation. This takes many forms – e.g., domestic violence situations, cult settings, POW camps or prisons for political prisoners, or hostage situations. Although some aspects of manipulation tactics overlap in these situations, different models or protocols are needed to make a proper analysis. For example, the method that works best with cult settings is not necessarily the best one for evaluating domestic violence situations or victims of kidnapping.

A model that works well in elder financial abuse situations is known as "IDEAL." Created to help evaluators clarify complex situations, IDEAL combines knowledge from the fields of psychiatry, psychology, and sociology regarding the mechanisms of human manipulation, with extensive review of statutes, case law, and legal theory. IDEAL helps attorneys describe the psychological and social factors that commonly co-exist in undue influence situations. Obviously, the results are always subservient to local statutes and case law.

The factors in IDEAL are: Isolation; Dependency; Emotional manipulation and/or Exploitation of a vulnerability; Acquiescence; and Loss. "Isolation" — This refers to isolation from pertinent information, friends, relatives, or usual advisors. Causes include: medical disorders; a history of poor relationships with others; perpetrator interference; geographic changes (e.g. travel); and technological isolation (e.g. loss of telephone services).

"Dependency" — This refers to dependence upon the perpetrator, such as for physical support, emotional factors, or information.

"Emotional manipulation" or "Exploitation of a vulnerability" — This often manifests as a combination of promises and threats regarding either issues of safety and security, or companionship and friendship. Perpetrators sometimes make use of victim weakness or vulnerabilities. It is not unusual to encounter cases in which, for example, a perpetrator provides alcohol to an alcoholic, or has him execute documents despite knowing that the victim is mentally impaired due to acute or long-term effects of alcohol; having a vision-impaired person sign a legal document; or misrepresenting documents and their consequences to the cognitively impaired.

"Acquiescence" — This refers to the victim's apparent consent or submission. The act is not truly voluntary, but is instead the product of inaccurate, misleading or deceptive information that is believed due to the victim's impairments and/or relationship with the perpetrator.

"Loss" — This refers to inter vivos financial loss.

Using the protocol

At the basic level, users of the IDEAL protocol categorize the behaviors of the person in question according to the headings listed above (isolation; dependency; emotional manipulation and/or exploitation of a vulnerability; acquiescence; and loss). This categorization helps clarify the context of the behaviors in question. The findings are then compared to statutes and case law. Hundreds of cases have been evaluated using IDEAL. In cases brought to civil litigation and probate, all of the first four factors (I-D-E-A) co-exist most of the time when there is a finding of undue influence (Note: When these four are not found, idiosyncrasies in local statutes and case law may nonetheless provide for a finding of undue influence; however, it is more likely evidence that undue influence did not occur). The fifth item, "loss," has been a component in some civil and probate cases, and appears to be a necessary component in criminal prosecution.

Designed for ease of use, the IDEAL protocol has found wide support amongst lawyers, judges, law enforcement, Adult Protective Services, Public Guardians, psychiatrists, psychologists, and legislators. IDEAL is currently used in many parts of the United States, as well as in several other countries.

Next time: Using IDEAL in actual cases.

For more information on the psychiatric aspects and components of undue influence:

1. Blum, B. "Forensic Issues: Geriatric Psychiatry," in Kaplan and Sadock's Comprehensive Textbook of Psychiatry, Eighth Edition, B. Sadock and V. Sadock editors. Baltimore, MD: Lippincott, Williams and Wilkins. January 2005.

2. Blum, B. "The "IDEAL" Protocol for Undue Influence – An Introduction," NCPJ Life & Times, Vol. 2, Number 7. National College of Probate Judges. Spring 2003.

3. Blum, B. "Undue Influence In Elder Financial Abuse," testimony to the United States Senate Committee on Commerce, Science and Transportation - Hearing on "Fraud: Targeting America's Seniors." http://www.senate.gov/~commerce/issues/consumer.htm#Hearings or http://www.senate.gov/~commerce/hearings/0804blu.pdf. August 1999.

4. Brandl, B, Heisler, C, Stiegel, L. "Undue Influence: The Criminal Justice Response (CD)." Available through the Wisconsin Coalition Against Domestic Violence

5. Brandl, B, Heisler, C, Stiegel, L. "The Parallels Between Undue Influence,Domestic Violence, Stalking, and Sexual Assault," in Journal of Elder Abuse and Neglect, Vol 17(3) 2005.

6. Nievod, A. "Undue Influence in Contract and Probate Law." Cultic Studies Journal, Vol.10, No.1, 1993 - and reprinted from Journal of Questioned Document Examination, Vol. 1, No. 1, 1992.

7. Cialdini, R. Influence – The Psychology of Persuasion. New York, NY: Quill William Morrow, 1991.

8. Cope, M., Duress, Undue Influence and Unconscientious Bargains. Part of the Monash Studies in Law. Sydney, Australia: The Law Book Company Limited, 1985.

9. Singer, M., Cults in Our Midst – The Hidden Menace in Our Everyday Lives. San Francisco, CA: Jossey-Bass Publishers, 1995.

Dr. Blum is an expert in the field of elder abuse and has consulted for the United Nations, the White House, the US Senate, international tribunals, the American Bar Association, and numerous other groups in the United States and the Western Hemisphere. More information about elder financial abuse, and Dr. Blum, is available on his website: www.bennettblummd.com. Tel. 520.750.8868 or 949.723.2211

Dr. Blum and LexisNexis® have recently produced the first in a series of Internet-based presentations on the topic of "Elder Financial Abuse and Undue Influence." Chapter 1 is available at: https://casesoft.webex.com/casesoft/onstage/tool/record/viewrecording1.php?EventID=387742112

Chapter 2 "Undue Influence – The IDEAL Model" is available at: https://casesoft.webex.com/ec0507l/eventcenter/recording/recordAction.do?theAction=poprecord&siteurl=casesoft&confViewID=388071431


1 Balisok, Hitchcock, Lomhoff, Murphy, Spiegel, Stebner and Tom. California Elder Law Litigation: An Advocate's Guide. Continuing Education of the Bar – California, 2005 update, pp. 393-394. Similar phrasing is found in statutes and case law throughout the United States.


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