by John T. Anderson, Chairman
Certified Specialist in Estate Planning, Trust
and Probate Law by the State Bar of California,
Board of Legal Specialization
Re-visiting Gifts to Caregivers
A brand new case carves away and helps further define the application of Probate Code §§21350 and 21351 together with Welfare and Institutions Code §§15610.17 and 15610.23.
Estate of Donald Richard Austin, deceased, Austin v. Simpson
F058119 (September 15, 2010)
Probate Code §21350 provides a list of relationships which cause a transfer to be presumptively invalid. Probate Code §21351 provides the ground rules for exceptions to §21350 and sets forth the standard of proof to overcome the presumption that the gift is invalid as clear and convincing. Welfare and Institutions Code §15610.17 defines a “Care Custodian,” and Welfare and Institutions Codes §15610.23 defines a “Dependent Adult.”
Judge Paul has spent a good amount of time explaining to counsel just how high that standard of proof is to prepare them before they proceed.
Here, decedent’s daughter (Dawn) challenged gifts to the daughter of decedent’s former wife (Debra). Dawn’s mother was married to decedent for eight years. They divorced “for Medi-Cal reasons.” Probate Code §21350 established a burden of proof to overcome the presumption of invalidity of a transfer to persons of enumerated relationships. One of those is a care-custodian as defined in W&I §15610.17.
The appellate court referred to the type of care provided by longtime friends in Conservatorship of Davidson (2003), 113 Cal.App.4th 1035 and Bernard v. Foley (2006) 39 Cal.4th 794 which, this court says disapproved of Davidson “to the extent it interpreted §21350 as excluding from the definition of a ‘care custodian’ those caregivers whose service relationship . . . arose out of a pre-existing personal friendship rather than a professional or occupational connection.”
At the trial, the court found, and the Appellate Court agreed, that to be a “care custodian,” did not require that one be compensated; but required that they provide health services or social services to a dependant adult (Bernard). In Bernard v. Foley decedent resided with Foley and Erman. “She was incapable of caring for herself and was dependent upon them for her daily needs.” They put her to bed, changed diapers, prepared meals, applied medications, handled banking and finances; “[s]ubstantial, ongoing health services.”
In Davidson, the court found, and the Appellate Court agreed, “the kinds of errands, chores, and household tasks performed . . . simply cannot be equated with the provision of “health services and social services” . . . constituting custodial care.”
Because of the limited services provided by Debra, the court found that Dawn had not met her burden of proving that Debra was a care custodian under the code and thus §21350 did not even come into play to shift the burden of proof to her to prove, by testimony other than her own or anyone else in §21350, by clear and convincing proof, that the gifts were not a product of fraud or undue influence and that she fell within an exception in §21351.
So friends who provide limited assistance may not be disqualified persons to receive gifts. In planning, I recommend assuming they are care custodians if the friends assist in any acts of daily care. After the fact, when it is too late to plan, this case will provide guidance.
MARK YOUR CALENDAR: Upcoming Long Beach Bar Estate Planning, Trust and Probate Section Brown Bag Meetings at the Long Beach Superior Court, Dept. G (5th Floor), from noon to 1 PM:
Thursday, October 21, 2010 Judge Mitchell Beckloff on Updates from LA Dept.5: What’s Happening in Probate
December 2, 2010, Jim Birnberg, Esq. on Legislative Updates
NOTE: THE PROBATE CALENDAR WILL HENCEFORTH BE CALLED IN DEPT G on the 5th Floor (still Thursday afternoons, but not in Dept. 11)
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John T. Anderson, Section Chair
Certified Specialist in Probate, Trust and Estate Planning
by the California State Bar Board of Legal Specialization
Copyright © 2011 by John T. Anderson
All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.
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