In our example posted on March 11, 2009, the contestant of Bob's Will (Bob's second cousin) who is attempting to circumvent Bob's gift to Ken, will attempt to convince the court that Ken is a Care Custodian as described under Probate Code Section 21350 and invalidate Bob's intent to bequest Bob's property to Ken.
Should the cousin prevail, it is logical to infer this to be an unfair resolution and that Ken logically should be able to receive Bob's property as both were such good friends. It is apparent that Bob appreciated Ken, especially in light of all Ken's assistance during those last months of Bob's life. It also makes sense that without other family, Ken would be the logical choice as a beneficiary of Bob's estate.
Probate Code Section 21350 provides for specific situations in which a gift to certain persons will be invalidated. One such circumstance in which a transfer would be deemed invalid is that from a dependent adult to the "care custodian" of that dependent adult.
The question would then be, what is a care custodian? In addition to the obvious defining attributes of what might constitute a care custodian such as the administrator or an employee of facilities providing services to dependent adults (nurses, health care workers, etc.), California Welfare and Institutions Code Section 15610.17 includes in the definition those "persons providing health services or social services to elders or dependent adults".
Now the question becomes, what would constitute health or social services? As a result of conflicting opinions in the lower courts, the matter was brought to the California
Supreme Court in Bernard v Foley (2006) 39 C4th 794, 47 CR3d 248. In the court's decision they found that an unrelated person may be a disqualified care custodian if that person provided "substantial, ongoing health services" to a dependent adult.
There is a previous case wherein the court dismissed the notion of invalidating the transfer to a care custodian if the care giving was a direct result of a preexisting friendship and relationship. The Bernard Court apparently didn't agree with the whole friendship exception and added that it doesn't matter if the care giving relationship naturally arose out of a preexisting friendship as in the case of Bob and Ken.
Then one must ask themselves, what exactly are those health and social services that, if performed by a potential beneficiary of a testamentary gift, would disqualify the potential recipient and invalidate the gift? The caregivers in Bernard assisted the dependent adult by doing her laundry, helping her to and from the bathroom, administering oral medication, cleaning the bedroom and typically performing such acts that one would hope a lifetime friend would do for you in your time of need.
In our hypothetical, there is a very good chance that Ken would be considered a care custodian and Bob's gift to Ken will be invalidated as a transfer from a dependent adult to a care custodian of that dependent adult. If Ken is determined to be a disqualified beneficiary, Bob's cousins, some whom he has never met, will receive and share Bob's property.
You might try to say that the ne-er do well cousins are violating the Will's no-contest clause and therefore will lose their right to receive the estate. However, a no-contest clause will not be enforceable against a beneficiary who brings the contest on the grounds of the invalidity of a transfer to a disqualified person.
This is not an isolated case. With the age demographics as they are these days and other contributing factors, it is not that unusual to find people leaving their estates to friends rather than remote relatives. Despite the fact that you care for and love your lifelong buddy and want to recompense your relationship with a bequeathing gesture, should your friend lend a helping hand in those last days, such acts of compassion and kindness could very well be penalized.
The code's intent is to limit, reduce if not eliminate the instances of abuse to elders and dependent adults. Many in this category are manipulated and unduly influenced to transfer their property to persons who are not the objects of their love and affection. Of course, in enforcing and interpreting the code, the good Samaritan and lifetime friend has been penalized.
A qualified estate planning professional will be able to advise you on how to avoid an unwanted care custodian consequence. One method is to obtain a Certificate of Independent Review from a lawyer other than the drafting attorney. However, the downside of this solution is that you would need to hire two attorneys. One attorney would draft the documents and the other would interview you and review your estate plan to make certain your testamentary wishes are not the result of menace, duress, undue influence or fraud. Absent any of the aforementioned, the reviewing attorney will sign a Certificate of Independent Review.
Assuming Ken is found to be a disqualified transferee, who would receive Ken's assets?