In elder financial abuse cases, it is often difficult to prove that fraud occurred. The elder’s mental capacity may have deteriorated to the point that he can no longer provide meaningful testimony. Then it may be necessary for a psychologist to provide expert witness testimony to prove that the elder was susceptible to undue influence and manipulation.
A psychologist is not a medical doctor, but has the necessary education, training, and skill to assist a court or jury on the issue of mental incapacity as it relates to the set of circumstances that led to the financial abuse. The role of the psychologist is forensic; that is, to go back in time and render an opinion as to whether the elder was susceptible to undue influence at the time the alleged abuse occurred.
This is not an easy task, particularly under California law. The psychologist must first meet with the attorney for the elderly to be well informed about the facts. The expert witness should only rely on facts that the lawyer is sure can be proven at trial. If the old man is still alive, then the psychologist should meet the old man personally and conduct a mental capacity test. Even if the elder is mentally incapacitated at the time of the examination, the jury will want to know that the expert took the time to obtain an eyewitness assessment and did not simply rely on someone else’s opinion.
The forensic opinion must focus on the mental capacity of the elder at the time the alleged financial abuse occurred, which may have occurred several years earlier. A thorough review of all medical records will be required, with the goal of uncovering any references to mental deficits.
The expert should also interview the elder’s family and friends to discover their knowledge of the elder’s mental history, including their observations of specific events and dates that identify the elder’s perspective or proclivities regarding financial matters. For example, it is possible that all of these witnesses knew that the old man grew up during the depression, was very conservative with money, and would not have made any frivolous gifts or transfers.
They can also provide the psychologist with information about the defendant and how the elder became increasingly lonely and isolated once the defendant became involved in the elder’s life.
The psychologist should also review all depository transcripts and other written findings to ensure that all evidence was carefully considered and used to form the basis of the expert opinion.
Once all this has been accomplished, the psychologist must meet with the elder’s lawyer to prepare the expert for the trial. This does not imply “training” the witness. It is the process in which the lawyer becomes familiar with all the facts on which the expert relied to reach an opinion. Both the lawyer and the expert must put themselves in the shoes of the other, as well as the elder, to fully understand the nature of the abuse and how it actually took place.
A qualified psychologist can provide valuable expert witness testimony to prove that an elder was susceptible to undue influence and a victim of financial abuse.