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Bequests to “Care Custodians” Scrutinized

Many elderly people in San Diego are cared for at the end of their lives by caregivers and friends rather than family members. Sometimes they want to provide for those caregivers or friends in their will or trust. Such bequests however can be challenged by family members and other beneficiaries after a death.

The California Probate Code lists seven categories of people who are presumptively unable to inherit under a will or a trust. The list includes the person who drafted the will or trust, the law firm, attorneys or employees of the law firm that are asssociated with the drafting and “care custodians.” A care custodian is defined to include a number of agencies and any “individual providing health care services or social services to elders or dependent adults.”

Those persons mentioned in Probate Code section 21350 who are left an inheritance are subject to higher scrutiny before they can inherit. They can inherit only if they can prove by “clear and convincing evidence” that the bequest to them “was not the product of fraud, menace, duress, or undue influence.” This can be difficult to prove after the death of the individual making the will or trust.

The Probate Code section arose out of a case, Bernard v. Foley, where a 97 year old woman changed her trust three days before she died to leave all of her assets to two individuals, old friends, who had taken care of her after she was diagnosed with lung cancer. Although the two caregivers won at the trial level, the California Supreme Court ruled that a “care custodian” does not necessarily mean a paid caregiver; it could be a personal friend and in fact personal friends would be uniquely in a position to influence the elderly person they care for. The two friends were disqualified from inheriting anything under the trust.

There is a means by which a person wanting to leave assets to a caregiver can do so without risking the possibility that the gift will be invalidated. The Probate Code provides that an individual wanting to make a bequest to caregivers can obtain a Certificate of Independent Review by a second attorney who interviews the testator and determinines whether the testator has been unduly influenced or coerced. We can help with these and any other estate planning issues at Law Office of Scott C. Soady, A Professional Corporation.

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