Q. My wife and I have a wonderful caregiver who has enabled us to remain at home. We would like to make a significant bequest to her in our wills. Can we handle the bequest by just handwriting a codicil to each of our wills?
A. The simple answer is, no. Here’s why: California lawmakers have become concerned with cases of caregivers who have taken advantage of seniors and other dependent adults in their care, by stealing vast amounts of money from them. You have probably read news accounts of these sad situations. As a result, they passed a law which now presumes that a bequest made by a dependent adult to a paid care custodian is the result of fraud or undue influence and therefore void, unless a very critical special step is taken in connection with the proposed gift or bequest. That critical step is designed to protect vulnerable dependent adults.
Here is the critical special step: in connection with making the gift or bequest, you and your wife must be interviewed by an independent attorney, outside the presence of your care custodian, for the purpose of determining that your intended gift is not the result of fraud or undue influence. The attorney must be your attorney, and not the attorney for the caregiver. If your attorney concludes that it is not so tainted, then he or she may then so certify in writing by signing a Certificate of Independent Review in the form prescribed by law. That certificate must then accompany your gift or bequest in order to validate it. Without that certificate, the gift or bequest is presumed invalid and will likely be declared void by a judge.
The same rule would apply if you wished to give her a big check this holiday season or to name her as a beneficiary on your insurance policy. Unless the gifts fell within an exception, the law would presume them to be the product of fraud or undue influence and therefore void.
Exceptions: The following gifts would not be void under this rule: (1) a smaller gift of less than $5,000 (provided that the value of the donor’s estate is at least $150,000); (2) a gift to a caregiver who is also a family member, and (3) a gift to a caregiver who performs services without pay, providing there was a pre-existing personal friendship. There is also an exception where the care custodian is able to prove to a judge, with clear and convincing evidence, that the gift was not the result of fraud or undue influence. But, a caregiver who goes this route takes a risk: if she fails to so convince the judge, she will then have to pay all costs of the court proceeding including reasonable attorney fees to the other parties.
So, making a sizable gift or bequest to your caregiver is not a do-it-yourself job. To validate the gift, you need to engage an independent attorney to conduct the appropriate evaluation and sign the required Certificate of Independent Review. If this requirement is followed, then your gift or bequest should be honored and your caregiver will then enjoy your loving tribute without the need to defend it in court.