ESTABLISHING A CONSERVATORSHIP BASED UPON UNDUE INFLUENCE: A PRACTITIONER’S GUIDE

By David G. Knitter, Esq.,^* and Mary K. deLeo, Esq.^**

Conservatorships are judicial actions in which a court appoints a protector to manage the financial affairs, or oversee the personal needs, of another due to that person’s physical or mental limitations. Since fundamental individual rights are involved, a conservatorship can be difficult to establish. Obtaining compelling proof of the need for a conservatorship, especially where the proposed conservatee or other family members object to the establishment of a conservatorship, is often problematic. When a conservatorship is sought on the basis that the proposed conservatee is the victim of undue influence, the proof problem is exacerbated.

Because undue influence is a form of elder financial abuse,¹ and abuse generally occurs without witnesses present, evidence of undue influence is often elusive and almost always circumstantial. One court has summed up the problem: "’Undue influence,’ obviously, is not something that can be seen, heard, smelt or felt; its presence can only be established by proof of circumstances from which it may be deduced."² Rather than relying on a "smoking gun" to prove his or her case, a practitioner who seeks to establish a conservatorship based upon allegations of undue influence must rely on a number of factors, many of them subtle, to prove to the court the imposition of a conservatorship is warranted. This article will explore ways to prove the types of factors that courts find persuasive in conservatorship proceedings based on allegations of undue influence. The authors will suggest methods a practitioner can use to present those factors in the pleadings and declarations to the court for maximum effect.

I. INITIATING A CONSERVATORSHIP