Are Gifts In A Will Or Trust Valid to Caregivers, Caretakers, Nurses Or Other Care Providers?

It is not that uncommon that children of a deceased parent find out shortly following a parent’s death that their mother or father amended their trust shortly before they died and gave a large gift to a caretaker/caregiver, nurse, or other care provider.   This often comes as a shock to the family considering that the amendment was executed during a time when their mother or father suffered from any one or a combination of the following factors:

  • The parent was ill or suffered from a debilitating medical condition;
  • The parent suffered from cognitive impairments such as dementia or Alzheimer’s disease;
  • The parent suffered with memory loss;
  • The parent had difficulty communicating with others;
  • The parent lived alone and required assistance for daily living;
  • The parent required companionship, housekeeping, shopping, cooking, and/or assistance with finances and required the hired help of others to accomplish these tasks.

Families confronted with this situation often do not have direct evidence that the caretaker/caregiver, nurse, or other care provider unduly influenced or coerced their mother or father into making changes to their estate plan. Without having direct evidence of any wrongdoing, are the gifts to caregivers/caretaker, nurses or other care providers valid?

Fortunately for families, California has enacted laws which impose statutory presumptions that certain types of gifts are presumed to be as the result of undue influence and fraud and therefore are invalid.

Let’s consider the impact of several important California Probate Code Sections.

California Probate Code Section 21380 states in part:

“(a) A provision of an instrument making a donative transfer to any of the following persons is presumed to be the product of fraud or undue influence:

(3) care custodian of a transferor who is a dependent adult, but only if the instrument was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period.”

What does this section mean?

It means that a gift to a care custodian made in a will, trust, deed, or other writing that designates a care custodian as a beneficiary is presumed to be the product of fraud or undue influence if the person providing the gift is a dependent adult and the gift was made during a time the care custodian provided services, or within 90 days before or after that period.

The next question is, who is a dependent adult?

California Probate Code Section 21366 defines a dependent adult as:

“ . . . a person who, at the time of executing the instrument at issue under this part, was a person described in either of the following:

(a) The person was 65 years of age or older and satisfied one or both of the following criteria:

(1)  The person was unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter.

(2)  Due to one or more deficits in the mental functions listed in paragraphs (1) to (4), inclusive, of subdivision (a) of Section 811, the person had difficulty managing his or her own financial resources or resisting fraud or undue influence.

(b) The person was 18 years of age or older and satisfied one or both of the following criteria:

(1)  The person was unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter.

(2)  Due to one or more deficits in the mental functions listed in paragraphs (1) to (4), inclusive, of subdivision (a) of Section 811, the person had substantial difficulty managing his or her own financial resources or resisting fraud or undue influence.”

What does this section mean?

This section provides the framework for how to determine whether an individual is considered a dependent adult.  A factual analysis will have to be undertaken to determine the individual’s overall health, both physical and mental, and his or her daily needs.  Often, the determination of whether a person is a dependent adult is a fiercely litigated issue.

Finally, who qualifies as a care custodian?

California Probate Code Section 21362 defines a care custodian as:

“(a) . . . a person who provides health or social services to a dependent adult, except that “care custodian” does not include a person who provided services without remuneration if the person had a personal relationship with the dependent adult (1) at least 90 days before providing those services, (2) at least six months before the dependent adult’s death, and (3) before the dependent adult was admitted to hospice care, if the dependent adult was admitted to hospice care. As used in this subdivision, “remuneration” does not include the donative transfer at issue under this chapter or the reimbursement of expenses.

(b) For the purposes of this section, “health and social services” means services provided to a dependent adult because of the person’s dependent condition, including, but not limited to, the administration of medicine, medical testing, wound care, assistance with hygiene, companionship, housekeeping, shopping, cooking, and assistance with finances.”

What does this section mean?

In a nutshell, a person will be considered a care custodian if he or she provides health and social services to a dependent adult.  This statute, however, specifically narrows the definition of care custodian by excluding personal friends of the dependent adult, assuming that they fall within the exception under section (a).

Conclusion

Therefore, absent statutory exceptions to Probate Section 21380 (See California Probate Code Sections 21382, 21384), the law will presume that the gift made to a care custodian, caretaker/caregiver, nurse or other care provider is invalid if the instrument (e.g. Trust, Will, Codicil, Amendment etc.) was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period. Assuming a lawsuit is brought against the caretaker/caregiver, nurse or care provider to invalidate the gift, the caregiver/caretaker, nurse or care provider will have the burden of proof and will have to prove to the court by clear and convincing evidence that the donative transfer/gift was not the product of fraud or undue influence.  The standard of clear and convincing evidence is a higher standard of proof which requires sufficient evidence to make it highly likely the truth of the matter proposed.  Often, this standard is very difficult to overcome in a court of law.   Essentially, the caregiver, caretaker, nurse or care provider will be presumed guilty of committing undue influence and fraud until evidence is brought forth in a court of law under the clear and convincing standard that he or she did not unduly influence the dependent adult.

Also weighing over the head of a caregiver/caretaker, nurse or other care provider is the fact that if they are unsuccessful in rebutting this presumption, they will bear all costs of the proceeding, including reasonable attorney’s fees.

The enactment of California Probate Code Section 21380, et seq., is a strong weapon in the fight against elder abuse and was based upon a sound public policy to prevent care custodians, caretakers/caregivers, nurses or other care providers who care for elderly and dependent adults from using their relationship to unduly benefit from the estate of the person under their care. It acknowledges that elderly and dependent adults are some of the most vulnerable in society and the persons who are in the unique position of controlling an elderly or dependent adult’s environment, including, but not limited to, their movements, nutrition, medical attention, companionship, medical care, assistance with finances etc., are in a powerful position to wrongfully influence, coerce, and pressure these individuals.

So, the short answer is, unless a statutory exception exists, provisions of an instrument (e.g. Trust, Will, Codicil, Amendment etc.) making a donative transfer/gift to a care custodian, caretaker/caregiver, nurse or care provider is presumed to be the product of fraud or undue influence if the instrument was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period.  The heavy burden of proof to rebut that presumption will be placed on the care custodian, caretaker/caregiver, nurse or care provider to prove that the gift was not the product of fraud or undue influence. Failing to overcome this presumption will cause the care custodian, caretaker/caregiver, nurse or care provider to bear all costs of the proceeding, including reasonable attorney’s fees.

The determination of whether a gift to a care custodian falls within California Probate Code Section 21380 requires an in-depth factual investigation and legal analysis. If it is determined that a gift to a caretaker/caregiver, nurse or other care provider falls within the purview of California Probate Code Section 21380, et seq., then a lawsuit should be filed against those individuals to invalidate any such gift.