August 31, 2006

Ask The Lawyer

California Supreme Court clarifies ‘Care Custodian’ and Estate Gifts

This week's question:
You wrote a column a year or two ago about a person who wanted to give an estate gift to a care custodian. Now my mother wants to give her house to her visiting nurse who happens to be a longtime friend and leave my siblings and me out of her living trust completely. Can she do this? Is there anything that can be done?

Heather H.
Almaden Valley

Dear Heather:
The California Supreme Court just released an important decision in this area, Heather. The case is entitled Bernard v. Foley and it was decided Aug. 21, 2006. The case arose in Los Angeles County.

In the Bernard case, Carmel Bosco was a widow who had signed her living trust several years previously. She had no children. Three days before she died, she signed an amendment to her living trust, leaving one-half of her estate to each of her two good friends, James Foley and Ann Erman, and nothing to her blood relatives. James and Ann, boyfriend and girlfriend, had cared for the older woman in their home during the final two months of Carmel's life.

A niece, Angela Bernard, was not too happy about Aunt Carmel doing this, thereby leaving her nothing, so she along with other blood relatives filed suit. They said in their suit that James and Ann exerted undue influence over Aunt Carmel when Aunt Carmel was really out of it (i.e. lacked testamentary capacity) and that the trust amendment should therefore be set aside.

Angela and the relatives also argued in their suit that James and Ann were really "care custodians" under the California Probate Code. Under these provisions, restrictions apply to gifts to certain persons and institutions to protect those in need of help. If these restrictions apply, any gift would be "presumptively invalid."

The California Supreme Court upheld the Court of Appeal and held that James and Ann were in fact "care custodians" and that they failed to rebut the resulting presumption that Aunt Carmel's donative transfer was the "product of fraud, menace, duress, or undue influence." The basic holding of the case is that longtime friends can be bound by the restrictions placed on "care custodians" just like hospital or nursing home employees.

In the words of the California Supreme Court, "We conclude that when an unrelated person renders substantial, ongoing health services to a dependent adult, that person may be a care custodian for purposes of the statutory scheme at issue, notwithstanding that the service relationship between the individuals arose out of a preexisting personal friendship rather than a professional or occupational connection."

By the way, the column you referred to that I wrote a year or two ago dealing with these restrictions and care custodians can be seen on my Web site at www.almadenvalleylawers.com. From the homepage, click on articles and then estate planning. The last one on the list is #39 and is entitled "Leaving Your Estate to Your Care Giver and Others May Create Issues." It pertains directly to this topic, discusses the limitations on donative transfers and covers other related points.

You can read the Bernard v. Foley case for yourself by going online to: http://login.findlaw.com/scripts.callaw. Some of the reading is a bit tedious, and as always, you will want to discuss this case with your own attorney to see how it may or may not apply to your particular situation.

Good luck, Heather. You and your mother may each want to see your own attorney about this topic. It can be a very difficult one. I hope it all works out for you.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.