ATTORNEY NEWSLETTER
California Law on Gifts to Care Custodians
Tightening the Marriage Loophole for Gifts to Care Custodians
California law presumes that gifts – made either during life or at death – by an elder or dependent adult to their care custodian[1] are the product of undue influence (a defined term), and thus void, unless the undue influence presumption is overcome by clear and convincing evidence to the contrary. Many predatory care custodians married their dependent adult to take advantage of a previous provision in the law that exempted gifts to caregiver/spouses from this presumption. A new provision in California law, signed into effect by Governor Newsom on June 27, 2019, takes away that exemption under certain circumstances. This is good news for seniors and dependent adults. The San Francisco and California elder abuse attorneys at Evans Law Firm, Inc. represent senior victims of financial elder abuse by their care custodians who use marriage, undue influence, fraud, or other tactics to take property and money from seniors. If you or a loved one is a California senior who has been injured by financial elder abuse, call us today at (415)441-8669.
The new law, codified at California Probate Code § 21380(a)(4), tightens the marriage loophole: first, gifts to care custodians who marry their dependent adult within six (6) months prior to the gift (date of transfer) or to the execution of a testamentary document (i.e., a will or trust) are presumed to be the product of undue influence; second, care custodians who marry their dependent adult within six months prior to the dependent adult’s own death do not qualify as an omitted spouse to receive an intestate share of the dependent adult’s estate. In both these scenarios, the care custodian must either still be providing care services or have ceased such services within 90 days of getting married for these rules to apply. The 90 days is a cooling off period between when the caregiver services end and the marriage takes place. It may or may not be long enough to allow for the caregiver and the dependent adult to go their own separate ways. In sum, testamentary gifts or intestate inheritances that arise within a short-term marriage (under 6 months) between a care custodian and a dependent adult are now presumptively void as the product of undue influence.
What is “Undue Influence”?
Whether a caregiver marries his or her ward or not, undue influence lies behind many acts of financial elder abuse. But what exactly is “undue influence”? California law defines it as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” Calif. Welf & Inst. Code § 15610.70(a). Courts consider several factors in determining whether a transaction was produced by undue influence:
- The senior’s vulnerability. Evidence of vulnerability includes incapacity, illness, disability, lack of education, emotional distress, cognitive impairment, isolation or dependency, and whether the influencer knew of the senior’s vulnerability. Calif. Welf. & Inst. Code § 15610.70(a)(1).
- The apparent authority of the influencer. Evidence of authority includes status as a fiduciary (including agent under a Power of Attorney), caregiver, healthcare professional, spiritual advisor, expert, and/or professional credentials as an insurance agent, broker, or financial advisor or other qualification. Calif. Welf. & Inst. Code § 15610.70(a)(2).
- The conduct of the influencer, including controlling the necessities of life, medication, and care; controlling the victim’s access to family and friends; controlling access to information and intercepting mail and phone calls; using affection, intimidation or coercion; initiating changes in financial affairs; insisting on quick decisions; suggesting purchases or financial changes at inappropriate times and place; and claiming expertise in effecting changes. Calif. Welf. & Inst. Code § 15610.70(a)(3)(A)-(C).
- The equity (or inequity) of the result: The Courts will consider the economic consequences to the victim, a divergence from prior intent and dispositions of property, the relationship between the value received versus the payment made by the victim, and the appropriateness of the transaction in light of the length and nature of the relationship between the victim and the influencer. Calif. Welf. & Inst. Code § 15610.70(a)(4). Note however that evidence of an inequitable result without more is not sufficient to prove undue influence. Calif. Welf. & Inst. Code § 15610.70(b).
Our litigators understand the factors consider in all undue influence cases, especially those involving care custodians, and know how to investigate these cases to gather evidence for trial. Our lawyers pursue all available remedies under California law which include getting the injured senior’s money back, undoing any gifts, transfers or other harmful transaction, voiding legal instruments or contracts procured by undue influence, and securing an award of attorneys’ fees and costs to the injured party for bringing a successful action against the wrongdoer.
Contact Us
If you or a loved one have been the victim of financial elder abuse in San Francisco or elsewhere in California at the hands of a care custodian or any other person contact California financial elder abuse attorney Ingrid M. Evans and the other Evans Law Firm elder abuse attorneys at (415) 441-8669, or by email at <a href=”mailto:info@evanslaw.com”>info@evanslaw.com</a>. Our attorneys have experience with all types of physical and financial elder abuse, investment and securities fraud and annuity fraud, and nursing home abuse. We can guide your case through a jury trial, or toward an equitable settlement. We also handle qui tam and whistleblower lawsuits, whole life insurance and universal life insurance cases, and cases involving indexed, variable, and fixed annuities.
[1] Under California estate and trust law “care custodian” means “a person who provides health or social services to a dependent adult.” California Probate Code § 21362(a). The definition of “care custodian” under the Elder Abuse Act is broader and includes the employer, agencies and facilities that employ persons providing care or services for the elder or dependent adult. Calif. Welf. & Inst. Code § 15610.17.
