What Is a Care Custodian Under Probate Code § 21350?

• Citation: Vol. 11 No. 4
• Publication year: 2005
• Author: By Terrence M. Franklin and Matthew W. McMurtrey

WHAT IS A CARE CUSTODIAN UNDER PROBATE CODE § 21350?

By Terrence M. Franklin and Matthew W. McMurtrey^*

SUMMARY

Two cases interpreting the term "care custodian" have created a conflict about the proper breadth and scope of the prohibition against gifts to "care custodians" under Probate Code § 21350. The authors believe that "care custodian" should be broadly construed to maximize the protection of the elderly.

I. INTRODUCTION

Laws and institutions require to be adapted, not to good men, but to bad. -John Stuart Mill, 1869.

Every experienced estate planner has had an elderly client whose close family all moved away or died, whose physical needs were great, and whose wealth was ample. Complicating matters, that elderly client was befriended by someone in financial need, and the elderly client came to the estate planner's office to create an estate plan that would thank the friend for the generous help provided. The elderly client has told the estate planner that the new friend visits the client daily, and offered to run errands, to pay bills, to cook, to clean, to administer medication, and be there for any pressing need. Then, a few weeks or months after the elderly client has died, the perhaps distant family receives the first notice that things were not as they believed. The family receives the petition for probate of the elderly client's will, or the notice under Probate Code § 16061.7 indicating that the elderly client's trust became irrevocable. Then the lawsuit starts.

The disinherited heir or the disadvantaged beneficiary has contacted a lawyer. The lawyer believes that a claim under Probate Code § 21350 lies because the beneficiary who befriended the elderly person was a "care custodian," and the gift is therefore presumptively invalid. The caregiver's lawyer believes that victory is assured because the caregiver was not a "care custodian" under Probate Code § 21350 so the statute has no bearing on the validity of the donor's gift.

The court then faces the dilemma of choosing which of two competing stories to believe: on the one hand, the elderly client was ignored, or worse, neglected by the family for a long time, and in response to the family's inaction, the elderly client bestowed his or her love, affection, and wealth on the helpful caregiver who visited, ran errands, paid the bills, cooked, cleaned, and administered medication. On the other hand, the seemingly helpful aide took advantage, insinuating him or herself into the client's life and abused the elderly client physically, mentally and financially, and arranged to scavenge the financial remains of the client after his or her death.

If the factual issues are not complicated enough, the legislature clumsily defined "care custodian," resulting in conflicting Court of Appeal interpretations of the term. This issue is dispositive because being or not being a "care custodian" is often the difference between inheriting or not inheriting the deceased client's estate.

This article examines some of the issues that the current version of Probate Code § 21350 presents. The authors believe that by first reviewing the history of § 21350, the differing judicial interpretations of "care custodian," and the rationale underlying those different interpretations, a clear solution is evident. The courts should adopt the very broad definition of "care custodian," a solution that will protect the elderly from abuse.

II. HISTORY AND STATUTORY FRAMEWORK OF PROBATE CODE § 21350

In the early nineties, California lawyers and the public were shocked to learn of abuses by a Southern California attorney who had ensconced himself in a retirement community where he could draft estate plans for clients, many of whom felt so grateful to him that they included him as a beneficiary of their estates. When the number and extent of the gifts came to light, the legislature acted by proposing legislation to restrict the ability of attorneys to benefit in this way. At the same time, it also seemed to make sense to try to curb similar abuses by non-attorneys who assisted donors in making gifts that resulted in benefits to those who assisted in procuring the gifts.

California attorneys became familiar with the expression "AB 21," the original assembly bill number for the statute that invalidated these gifts to "drafters and others." The statute was first adopted as Probate Code § 21350 ("21350") in 1993. Trust and estate litigators were delighted to have a new weapon in their arsenal, and to have some specific statutory authority for attacking wills and trusts that appeared to be the product of undue influence exercised by those who were closest to testators and grantors who were very likely susceptible to undue influence.

The statute initially invalidated gifts not only to those who drafted documents but also to fiduciaries who drafted them, transcribed them, or caused them to be drafted or transcribed. In Rice v. Clark, the Supreme Court highlighted the distinction between the original 1993 version of the statute and 1995 amendments that eliminated the restriction on gifts to persons who "caused [an instrument] to be drafted."¹ It found that there was already sufficient case law to address general claims of undue influence, and that the legislature had adopted § 21350 "to clearly and unambiguously prohibit the most patently offensive actions of [the attorney] while not unreasonably encumbering the practice of probate law."²

Under the Rice ruling, a person is not presumptively disqualified from receiving a gift, even if he or she was a fiduciary who materially assisted a transferor to dictate the contents of a will and trust to an attorney, and to execute the instruments drafted by the attorney, so long as he or she did not directly participate in transcribing the instruments.³

In similar retrenchments from the initial broad scope of the statute after its 1993 adoption, exceptions were added to the statutory scheme to allow for the very real circumstance where a relative with

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a law degree who would have been a natural beneficiary of the testator prepared a document that gave a gift to that lawyer or to another member of the lawyer's and the testator's common family.⁴

Ultimately it became clear to the bar, and to the legislature, that a cottage industry seemed to be growing in which nurses, housekeepers and caregivers for the impaired and the elderly were insinuating themselves into the estate plans of their charges, and in many cases were being kind enough to give assistance, including legal advice, and transportation and referrals to lawyers, that resulted in them receiving the bulk of the estates of the testators. The Elder and Dependent Adult Civil Protection Act (EADACPA) had been adopted in the early eighties to curb such financial abuses as well as physical abuse of elderly persons and dependent adults.⁵ In 1997, in furtherance of those goals, the legislature specifically engrafted provisions onto § 21350 that invalidated gifts to "care custodians."

III. CASES INTERPRETING INCLUSION OF CARE CUSTODIANS IN PROBATE CODE § 21350

The provisions of § 21350 defining "care custodians" have been the subject of several cases in the last few years as courts have attempted to establish the appropriate contours of the statute, invalidating the gifts to those who seem to be preying on the elderly and the infirm, and protecting the gifts given to those who appear to have provided altruistic support, and might seem to have been honestly deserving of gratitude or compensation for their efforts, regardless of whether the donees were professional caregivers.

The focal point of the most recent case law disputes over how to interpret § 21350 is in the definition of "care custodian." Section 21350 provides, in relevant part, that "(a) no provision, or provisions, of any instrument shall be valid to make any donative transfer to any of the following: . . . (6) A care custodian of a dependent adult who is the transferor." Section 21350 in turn specifically adopts the definition of "care custodian" from the elder abuse provisions in Welfare and Institutions Code § 15610.17. Finally, § 15610.17 provides a twenty-five item laundry list of groups and individuals defined as "care custodians," including a final catchall "[a]ny other protective, public, sectarian, mental health, or private assistance or advocacy agency or person providing health services or social services to elders or dependent adults." (Emphasis added.)⁶ Thus, §...