Caregivers are presumptively disqualified from being named as beneficiary of a patient’s Will or Trust. Probate Code Section 21350, subdivision (a) provides: “Except as provided in Section 21351, no provision, or provisions, of any instrument shall be valid to make any donative transfer to any of the following: …… (6) A care custodian of a dependent adult who is the transferor.” A “disqualified person” under the statute “means a person specified in subdivision (a) of Section 21350, but only in cases where Section 21351 does not apply.” (§ 21350.5.)
Other presumptively disqualified donees under section 21350(a), include: the drafter of the instrument; the drafter’s relative, domestic partner, cohabitant, or employee; the drafter’s law partner or shareholder; an employee of the law partnership or corporation in which the drafter has an interest; one having a fiduciary relationship with the donor (including a conservator or trustee), who transcribes or causes the instrument to be transcribed; such fiduciary’s relative, employee, domestic partner, or cohabitant; and a relative of, domestic partner of, employee of, or a cohabitant with, a care custodian of the donor who is a dependent adult. (§ 21350(a).)
The statute defines the terms “dependent adult” and “care custodian” as follows: “For purposes of this section, the term ‘dependent adult’ has the meaning as set forth in Section 15610.23 of the Welfare and Institutions Code and also includes those persons who (1) are older than age 64 and (2) would be dependent adults, within the meaning of Section 15610.23, if they were between the ages of 18 and 64. The term ‘care custodian’ has the meaning as set forth in Section 15610.17 of the Welfare and Institutions Code.” (§ 21350, subd. (c).)
“‘Instrument’ is broadly defined in Probate Code section 45 as ‘a will, trust, deed, or other writing that designates a beneficiary or makes a donative transfer of property.’ ” (Rice v. Clark (2002) 28 Cal.4th 89, 97, fn. 4, 120 Cal.Rptr.2d 522, 47 P.3d 300.)
However, there is an exception to the presumptive disqualification of care custodian as beneficiary in a Will or a Trust. The presumption of invalidity of donative transfers to specified individuals under section 21350(a)-including transfers to care custodians of dependent adults-does not apply, , where “[t]he instrument is reviewed by an independent attorney who (1) counsels the client (transferor) about the nature and consequences of the intended transfer, (2) attempts to determine if the intended consequence is the result of fraud, menace, duress, or undue influence, and (3) signs and delivers to the transferor an original certificate … with a copy delivered to the drafter.” (§ 21351(b).) This “Certificate of Independent Review” must state that the attorney: reviewed the instrument; counseled the client/transferor concerning the nature and consequences of the subject transfer of property to the presumptively disqualified person under section 21350; was disassociated from any interest in the transferee; and concluded that the transfer to the presumptively disqualified person was valid because it was “not the product of fraud, menace, duress, or undue influence.” (§ 21351(b).)
The intent of section 21350 was “to prevent unscrupulous persons in fiduciary relationships from obtaining gifts from elderly persons through undue influence or other overbearing behavior. [Citation.]” Bank of America v. Angel View Crippled Children’s Foundation (1999) 72 Cal.App.4th 451, 456, 85 Cal.Rptr.2d 117. In 1997, the Legislature amended section 21350(a) to include care custodians of dependent adults as presumptively disqualified donees. (See Stats.1997, ch. 724, § 33; Conservatorship of Davidson (2003) 113 Cal.App.4th 1035, 1051 [6 Cal.Rptr.3d 702] [1997 amendment to section 21350 “was intended to apply to gifts made ‘to practical nurses or other caregivers hired to provide in-home care. If an elderly patient intends to create a Will or a living trust naming a caregiver as one of the beneficiaries, it is important for the elderly donor to retain an attorney that can advise the elderly of the proper procedure for drafting the Will and the Trust and avoiding having the gift to the beneficiary caregiver held invalid by the court after the donor’s death.
* * *
Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected] or visit our website at Kenreyeslaw.com.
* * *
Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, P.C. This article is not a solicitation.
