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?”