2020 Idaho Elder Exploitation Protection Legislation Did Not Pass Senate.
Tragic loss for Idaho’s under-served senior community after a 21 to 48 loss on passing House Undue Influence & Elder Exploitation Bill 404. Bill 404 was an overdue public safety reform that could have saved lives, families and possibly limited professional referral networks characterized by cronyism, conflicts-of-interest & self-dealing In North Idaho’s legal and geriatric service provider community. The 2020 Idaho elder exploitation protection legislation did not pass the house, thereby leaving the door wide open to wide-ranging family and fiduciary coercion, exploitation, fraud and undue influence that has been rapidly expanding in Idaho’s elder community.
Why did Idaho Senate Bill 404 on elder exploitation & adding new Title 18 elder protection code not succeed? House Bill 404 was a very important piece of legislation and well written because it would have helped mitigate undue influence related exploitation by Power of Attorneys, estate planning attorneys, guardians, conservators, healthcare providers, bankers, stock brokers, at home care providers and nefarious family members. Senior citizen reports and crimes are increasing, particularly among disabled, elderly women in North Idaho. The Legislation would have also mitigated the dangers presented by the legal community, probate court (guardianship-conservatorship crises), primary care physicians and patient advocates within healthcare facilities coordination and concealment of shocking elder abuse, exploitation and negligence related matters that are gravely affecting physically and cognitively disabled elderly women.
Bill 404 Wisely Created New Title 18 Section.
“Abuse is the intentional or negligent infliction of physical pain, or physical or mental injury. It happens right under our noses, behind closed doors. It happens right here in Idaho, right here in our city and, maybe, right in your neighborhood. Perpetrators are good at hiding their actions and victims are often unable or afraid to tell.”
“Why don’t the abused victims tell? Many victims won’t admit to being abused because it could get a loved one in trouble or end an important relationship. If an abuser is found guilty, what happens to the vulnerable elder? Some victims may feel shame and even blame themselves. They may be afraid of not being believed and of retaliation from the abuser. Some victims with dementia may not be able to speak out or understand what’s happening.”
Undue Influence Probate Precedents Demonstrate Why Legislation Like Senate Bill 404 are Necessary in Both the Short and the Long-term.
Research Focus State, Idaho: Elder Abuse, Undue Influence Cases & Probate Precedents.
1. Undue influence may be inferred from the fact that the beneficiary was active in the preparation of the will. In re Lunders’ Estate, (1953) 74 Idaho 448, 454, 263 P.2d 1002; Estate of Randall, (1939) 60 Idaho 419, 93 P.2d 1.
2. Undue influence has been defined as domination by the guilty party over the testator to such an extent that his free agency is destroyed and the will of another person substituted for that of the testator. In re Eggan’s Estate, 86 Idaho 328, 386 P.2d 563(1963); In re Lunders’ Estate, supra.
3. Although conclusive rights should not be given it, the fact that the testator having the capacity and ability to do so failed for a substantial period of time to change or revoke a will alleged to be the product of undue influence, negatives the claim of undue influence.” 94 C.J.S. Wills § 261, p.1143. With respect to a will which also continued unchanged for two years prior to the testator’s death, calling it strong evidence that he was not coerced into making it, but that it was entirely satisfactory to him when made and that satisfaction continued until his death.”Laberee v. Laberee, 112 Or. 44, 53, 227 P. 460, 462, 228 P. 686; In re McCaslin’s Estate (1960) 222 Or.599, 352 P.2d 1111.
4. If, prior to executing his last will, a testator shows a continuity of purpose running through his former wills and codicils which indicates a settled intent or consistent state of mind on his part as to manner of distributing his estate, such fact may be considered in determining whether he is in possession of a disposing mind, that is, had testamentary capacity and was free from undue influence in making his last will.” In re Nelson’s Estate, 72 Wyo. 444,266 P.2d 238 (1954); In re Hart’s Estate, 107 Cal.App.2d 60, 67, 236 P.2d 884, 889.
5. Weakened mental and physical condition of Testator are factors to be considered in determining question of undue influence. Estate of Brown, 52 Idaho 286, 15 P.2d 604; In re Lunders’ Estate, 74 Idaho 448, 263 P.2d 1002.
6. “Undue influence consists of domination by guilty party over testator to such extent that his freeagency is destroyed and will of another person is substituted for that of testator.” Witthoft v. Gathe, 38 Idaho 175, 221 P. 124; In re Lunders’ Estate, 74 Idaho 448, 263 P.2d 1002.
7. Undue influence is any means employed upon and with testator which under circumstances and conditions by which testator was surrounded, he could not well resist, and which controls his volition and induced him to do what otherwise would not have been done. In re Eggan’s Estate, 86 Idaho 328, 386 P.2d 563.
8. Influence arising from gratitude, affection or esteem is not undue, nor can it become such unless it destroys the free agency of the testator at the time the instrument is executed and shows that the disposition therein results from fraud, imposition and restraint of the person whose superior will prompts the execution of the testament in the particular manner which the testator adopted. In re Estate of Hill, 198 Or. 307, 335, 256 P.2d 735, 747; In re McCaslin’s Estate, 222 Or. 599, 352 P.2d 1111.
9. Influence gained by kindness and affection will not be regarded as undue if no imposition or fraud be practiced, even though it induced Testator to make unequal disposition of his property in favor of those who contributed to his comfort. In re Reddaway’s Estate, 214 Or. 410, 329 P.2d 886.
10. It is not sufficient for the contestant to merely prove circumstances consistent with the exercise of undue influence; that before the will can be overthrown the circumstances must be inconsistent with the voluntary action on the part of the testator. In re Welch’s Estate, 43 Cal.2d 173, 272 P.2d 512 (1954).
11. Mere existence of a confidential relationship to testator does not in itself establish undue influence. To set aside a will on the ground of undue influence there must be shown influence used directly to procure will, amounting to coercion destroying free agency on part of testator.In re Eggan’s Estate, 86 Idaho 328, 386 P.2d 563.
12. A will cannot be impeached by the subsequent oral declarations of the Testator. Gwin v. Gwin, 5Idaho 271, 48 P. 295.
13. The declarations of a testator made after the execution of a will showing his dissatisfaction therewith and his intention to execute a new will are not admissible to show that said will was executed under duress or undue influence. Gwin v. Gwin, 5 Idaho 271, 48 P. 295.
14. The general rule established by the overwhelming weight of authority is that declarations of the testator not made contemporaneously with the execution of the will, or so near thereto as to constitute a part of the res gestae, are not competent as direct or substantive evidence of the truth of the matters stated when offered on the issue of undue influence inducing the execution of the will. In re Estate of Wayne, 134 Or. 464, 291 P. 356, 294 P. 590,79 A.L.R. 1427; 148 A.L.R.1225.
15. A confidential relation exists between two persons, whether their relations be such as are technically fiduciary or merely informal, whenever one trusts in or relies on another. The question is whether or not trust was reposed. Sewell v. Ladd, (Mo.App. 1942) 158 S.W.2d 752,756.16. The existence of a confidential relation is purely a question of fact. Ringer v. Finrock, (Pa. 1941) 17 A.2d 348, 350.
17. A confidential relation may exist as a matter of fact whenever one person has reposed a special confidence in another to the extent that the parties do not deal with each other on equal terms, either because of an overmastering dominance on one side, or weakness, dependence or ignorance on the other side. Ringer v. Finrock, (1941) 340 Pa. 458, 17 A.2d 348, 350; Floyd v. Green, (1939) 238 Ala. 42, 188 So. 867, 871; In re Null’s Estate, (1930) 302 Pa. 64, 153 A. 137,139; In re Day’s Estate, (1953) 198 Or. 518, 257 P.2d 609, 614.
18. Where the beneficiary took the testator to a lawyer and remained with the testator during the preparation and execution of the will, even though the beneficiary was outside of the lawyer’s office, or in the waiting room, while the testator was conferring with the lawyer and while thewill was being executed, there is such evidence of activity in the preparation of the will that undue influence may be inferred from the presence of the beneficiary in this manner. In re Lunders’ Estate, (1953) 74 Idaho 448, 451, 263 P.2d 1002; Estate of Randall, (1939) 60 Idaho419, 93 P.2d 1; In re Gagliasso’s Estate, (1957) 150 Cal.App.2d 65, 309 P.2d 513, 514; In re Estate of Leonard, (1949) 92 Cal.App. 420, 207 P.2d 66, 72.
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Aligned Cronyism in Probate Court & Undue Influence
Entrenched Professional Cronyism in Probate Courts, A Key Factor in Elder Abuse & Exploitation.
The same Judge has biased council from aligned self-serving professionals, all whom have mutual interests to keep the cash-cow victim and their property under their authority in Guardianships and/or Conservatorships. This is a substantial and illicit conflict-of-interest—opposite of the Wards best interest. When those acting as officers for the court; lawyers, guardian ad litems, social workers/court visitors, evaluating clinicians & physicians work in-concert to conceal documents, evidence of abuse, exploitation & negligence — this essentially sabotages the machinery of justice; due process, amounts to perjury and each by definition, is a type of fraud upon the court.
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Criminal ageism, sexism and “disabilism” rackets run through the county courts.
The municipal court’s crony-aligned network of professionals all receiving hundreds of dollars in hourly fees from the same vulnerable person’s estate (most often disabled elderly women).
BuzzFeed Article excerpt: In local courts across the country — often woefully unfit for the sweeping power they command — guardians, lawyers, and expert witnesses appear frequently before the same judges in an established network of overlapping financial and professional interests. They are often paid from the estate of the person whose freedom is on the line, creating powerful incentives to form guardianships and keep them in place.
“The judge knows the lawyers, the lawyers know each other,” said J. Ronald Denman, a former state prosecutor and Florida lawyer who has contested dozens of guardianships over the past decade. “The amount of abuse is crazy. You’re going against a rigged system.”
Seattle Times: Secrecy hides cozy ties in guardianship cases
Data aggregation sources courtesy of Spokane; Washington, Sandpoint & Coeur d’alene; Kootenai County, Idaho Grassroots Networks.