Estate Planning: Use Caution With Gifts to Caregivers

Tamara Polley
By Tamara Polley September 15, 2014 22:13

If you’ve had the help of a trusted caregiver for years, you may want to leave that person a gift upon your death. Or perhaps your elderly parent is considering such a bequest.

In either case, plan carefully to make sure the gift is legal.

California has specific laws regarding bequests to caregivers, and if the proper procedures are not followed, the bequest is likely to be declared void.

These laws were enacted because of growing concerns over the vulnerability of seniors who depend on caregivers, and the unique position a caregiver might have in exerting undue influence.

In fact, the law presumes that a bequest by a dependent adult to a “care custodian” is the result of fraud or undue influence unless the dependent adult obtains a “certificate of independent review” from an attorney.

Who qualifies as a care custodian?

The law defines a care custodian as a non-family member who provides “health and social services” to a dependent adult. The definition excludes persons who provided services without any financial benefit if:

  • they had a personal relationship with the dependent adult at least 90 days before providing those services
  • the relationship existed at least six months before the dependent adult’s death
  • and the relationship existed before the dependent adult entered hospice care

What are “health and social services”?

These include “the administration of medicine, medical testing, wound care, assistance with hygiene, companionship, housekeeping, shopping, cooking and assistance with finances.”

Who is considered a dependent adult?

An adult over 65 is considered dependent if he or she is unable to provide properly for his or her personal needs for physical health, food, clothing or shelter, or due to a mental deficit, has difficulty “managing his or her own financial resources or resisting fraud or undue influence.”

For those under age 65, the second part of the definition changes, requiring that the mental deficit result in substantial difficulty managing his or her own financial resources or resisting fraud or undue influence.

What is a certificate of independent review?

This is a written statement by an attorney (in a specified form) that he or she has met with the dependent adult outside the presence of the caregiver and has determined that the intended bequest is not the result of fraud or undue influence.

The attorney must have no legal, financial, or other relationship with the caregiver.

Are there any exceptions to the requirement of a certificate of independent review?

Yes, there are two exceptions:

  • gifts of less than $5,000 (provided the value of the dependent adult’s estate is at least $150,000)
  • gifts to caregivers who are also family members

What happens if the bequest was made without a certificate of independent review?

If the gift is to a non-relative caregiver who received any form of compensation, it will be set aside unless the caregiver can prove to the court by clear and convincing evidence that the gift was not the product of undue influence or fraud.

If the gift was made to a relative or to an uncompensated caregiver with an existing personal relationship to the dependent adult, the gift will not be presumed to be void under the caregiver law.

The bequest, however, may still be determined to be void if it is proven to be the product of undue influence or fraud. Therefore, it is always advisable to consult an experienced estate planning attorney.

Tamara Polley is an attorney with Gianelli & Polley, a Sonora law firm,

Copyright © 2014 Friends and Neighbors Magazine

Tamara Polley
By Tamara Polley September 15, 2014 22:13
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