2006 California Case Disqualifies "Care Custodians"

Gene L. Osofsky, of the law firm Osofsky & Osofsky, explains how
being regarded as a "care custodian" may disqualify a person from being
a beneficiary of a testamentary distribution.

"It might seem counterintuitive," says Elder Law specialist Osofsky,
"but according to a 2006 case decided by the California Supreme Court,
being designated as a 'care custodian' of a dependent adult, may
actually disqualify such persons from receiving testamentary bequests."
Adds Osofsky, "Only if the person making the testamentary bequest
engaged a separate attorney to conduct an Independent Review and affirm
that the testator was of sound mind and knew what he was doing, could
the bequest be upheld." The law seeks to protect dependent adults from
coercive beneficiary disbursements made under duress or as the product
of overreaching or undue influence. In certain care settings,
California law presumes the naming of a care custodian as a beneficiary
of one's Will or Trust to be coercive actions assumptive of an
unscrupulous care custodian and therefore void.

The case of BERNARD V. FOLEY (decision handed down August 21, 2006)
found that unrelated friends providing ongoing health services to a
dependent adult were "care custodians" under the relevant state statute
and were therefore disqualified from receiving a testamentary
distribution. James Foley and Ann Erman were longtime friends with
Carmel Bosco. Ms. Bosco lived with them for two months prior to her
death. Foley and Erman assisted her with her daily needs, including
preparing her meals, helping her bathe, changing her diapers, and
administering oral medications. Three days before she died, Ms. Bosco
altered her living trust to make Mr. Foley and Ms. Erman each 50
percent beneficiaries. They had not previously been beneficiaries of
the trust.

But Ms. Bosco's relatives protested. Petitioning the court to
invalidate the amendment, they argued that Mr. Foley and Ms. Erman were
disqualified from receiving a testamentary distribution because they
were "care custodians." "Under California law, there is a presumption
that donative transfers to care custodians are procured by undue
influence," explains Osofsky, "The state Supreme Court merely affirmed
that a 'caregiver' under the statute could even be a friend who renders
care to a dependent adult without compensation." According to the
Court's decision, the definition of custodial care includes
uncompensated or nonprofessional care and there is no evidence the
legislature intended to make an exception for preexisting personal
friends who provide health care services. Concludes Osofsky, "Elders
have to be protected from people who would provide them with
unprofessional care simply as a pretense to inheriting their assets.
The very fact that they require such care puts them in an extremely
vulnerable position." But even this can be less than ironclad.
"Sometimes persons have legitimate reasons for wanting to make bequests
to their non-family member caregivers. In California, this essentially
requires two attorneys to be involved, one to perform the Will or Trust
and a second to conduct the Independent Review. Is this a trap for the
well-intended?"

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.