Share, , Google Plus, Pinterest,


Posted in:

When Making a Gift or Bequest to a Caregiver, Seniors Must Take Extra Steps to Make Sure its Blessing, Not a Curse.

Historically, an underlying premise of the laws governing wills and trusts has been that an owner is entitled to dispose of his property as he pleases in death as in life. However, due to some well-publicized cases of senior citizens being preyed upon by persons hired to care for them who persuaded the seniors to leave them large bequests, California in the 1990s enacted laws to protect seniors from such people who the new legislation defined as “care custodians”.

Although the new protective measures were aimed at paid care custodians, the language of the statutes did not restrict the measures to only professionals. Thus, even friends and neighbors who aid an elder neighbor can end up defending a lawsuit if their friend leaves them a testamentary gift. We had occasion to defend such a lawsuit, and have written this article to educate seniors on the steps the law provides to avoid turning a gift intended as a blessing into a curse.

An Illustrative Case

A good example of what can happen if a Certificate of Independent Review is not obtained by the elder making a gift is a case successfully defended by Mary Gram of our law firm. Her clients were a married couple (the “Smiths”) who were fast friends with their neighbors, a childless older couple who had no local relatives (the “Jones”). Over the years the Smiths and Jones would celebrate holidays and other occasions together, and the Jones doted on the Smiths’ children as though they were family. Mr. Jones had some nephews who resided on the East Coast, who never visited him or were otherwise involved in the Jones’ lives.

After Mrs. Jones passed away, Mr. Jones health declined. The Smiths increasingly cared for him, and he eventually moved into their home, and became an integral part of their family. After a few years he passed away, leaving his entire estate in trust to the Smiths. Upon learning of this, his nephews sued, alleging the Smiths had exercised undue influence on Mr. Jones to obtain his estate. As Mr. Jones had not obtained a Certificate of Independent Review, the Smiths were left to defend a costly lawsuit.

Fortunately, the Smiths had kept years of birthday cards to and from the Jones, had lots of photos and video recordings of occasions together over the years, and friends and neighbors from the community who knew them and the Jones, and were willing to testify to the closeness and quality of their relationship. Therefore, they were able to provide sufficient evidence to satisfy their “clear and convincing” burden of proof. After a court trial that lasted more than two weeks they prevailed. Had they not kept all those photos and cards they might have lost.

The Legal Framework

California law is concerned with elders being unduly influenced by care providers who seek to improperly access their financial resources. Because of this, any financial transfers, gifts to caregivers, or bequests via the estate plan of the elder (“Gifts”) are presumed to be the product of fraud or undue influence, unless the elder has obtained independent counsel and a Certificate of Independent Review from an attorney who did not draft the instrument providing for the Gifts.

As interpreted by California courts, these laws have been held to include not only Gifts to professional caregivers, but in some cases also to friends and neighbors who have assisted elderly friends and neighbors with tasks as mundane as grocery shopping, cooking, bathing, or properly taking medications.

Thus, if such Gifts are challenged by the elder’s relatives, the caregiver can find herself enmeshed in a costly lawsuit where she has the burden of proving by a high “clear and convincing proof” standard that

the Gifts were not improperly obtained. Under this standard the caregiver must provide a substantial amount of evidence to prove a negative; that he or she did not coerce the elder into making a gift or bequest that resulted in the receipt of an unjust benefit by the caregiver. Therefore, an elder who freely desires to make Gifts to a caregiver needs to obtain a Certificate of Independent Review to prevent the Gifts from being transformed into a costly albatross for the caregiver.

When determining undue influence, the court considers factors such as vulnerability of the victim, the influencer’s apparent authority, the influencer’s actions and tactics, and the equity of the result. Undue influence occurs when one person coerces another into doing something that results in an unjust benefit to the influencer. California probate law presumes undue influence on the part of a caregiver or “care custodian” who receives any financial gain (outside of salary) through their relationship with an elder. As noted, the law defines a “care custodian” broadly as any persons who provide care for elders or dependent adults, whether professional or not.

If you are a senior thinking of making any Gifts to someone who might be considered a care custodian, consult with an independent attorney and obtain a Certificate of Independent Review. By doing so you will ensure that what you are giving is a blessing, not a curse.