The holidays are upon us, which means that families everywhere are preparing to travel to spend quality time with their aging parents. With families spread to the far reaches of the country, in-person visits tend to reveal far more about mom or dad’s day-to-day life and the people who have become close to them than we could ever discern from weekly Zoom calls. Of particular importance is the role of a caregiver in the daily life of an elderly parent, notably one who is widowed and may feel lonely or isolated. Enter the California Care Custodian Statute.
The purpose of the Care Custodian Statute codified as California Probate Code Section 21350, is to protect elderly individuals from predatory people who might abuse the reliant, trusting nature of the care custodian relationship to manipulate the elder into giving the care custodian a portion, if not all, of the elder’s estate. The Statute presumptively invalidates testamentary gifts (those left through a Will, Trust, or account Beneficiary Designation) made by a “dependent adult” to an individual who provides services to the elder.
Certainly, not all gifts made by elders to care custodians are inherently inappropriate, and it is not uncommon for an elderly individual to desire to provide a small gift to the individual who assisted the elder as he or she aged and required additional support. However, caregivers can easily abuse an elder through daily pressure to leave the former a portion or all of the elder’s estate, through isolation from family or statements that family members are not interested in the elder, and through threats to withdraw daily companionship or caregiver services. Typically, such pressure is applied over the course of months or years, and the family has no idea that a parent has left the majority of his or her estate to a caregiver until he or she has passed away. We can help to ensure that a caregiver is not unduly influencing a parent by being a close part of their lives, maintaining relationships with their friends and neighbors, visiting frequently, and keeping our eyes and ears open. If an elder expresses a wish to make a gift to a caregiver, encourage him or her to meet with an independent attorney who will counsel the elder about the nature and consequences of the intended transfer, and attempt to determine if the intended consequence is the result of fraud, menace, duress or undue influence. If the gift appears to be knowing, voluntary, and solely the product of the elder’s own will, the attorney will issue what’s known as a Certificate of Independent Review, which removes the legal presumption that a gift to a caregiver is the product of fraud or undue influence.
A second scenario involving gifting to caregivers often involves a family member who takes care of an aging parent and receives a special gift under a Will, Trust, or account Beneficiary Designation. While such gifts are not presumptively invalid under the Caregiver Statute due to an exception for a familial relationship between the transferor and transferee, this scenario often causes resentment as other family members might believe that the family caregiver pressured mom or dad to leave them more than an “equal” share of the estate. What families often fail to see is that the family caregiver may make a significant sacrifice by giving up a job and employment benefits to care for a loved one. A formal agreement among family members can provide a way to compensate a person providing care through a binding agreement known as a personal care agreement. This agreement can offer family caregivers security that they will not suffer undue financial consequences by taking time away from a paid job to care for a loved one. At the same time, the agreement can also offer a loved one peace of mind that he or she has a caring advocate to manage care needs. Drawing up an agreement clarifies for a family what tasks are expected to be performed in return for stated compensation, room and board, etc. It can help avoid family conflicts about who will provide care, the nature of services, and how much money will change hands. For this reason, the agreement should be discussed with other family members to resolve any concerns before an agreement is drafted, preferably by an experienced elder law attorney.
If you are interested in obtaining information regarding making gifts to third-party or family caregivers or wish to discuss the process of obtaining a Certificate of Independent Review, please feel free to contact us.
