Careful Giving: Suggestions for Passing Gifts to Care Providers

By Donald A. Hunsberger

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According to the Orange County Register, a 91-year-old woman from Brea died in mid-2014, and left her entire estate to her caregiver. After officials discovered the transfer, they removed her assistant as trustee and took away the home she left  him. 

Why? According to the District Attorney and the ruling Judge, the facts of the case demonstrated “Fraud and Undue Influence” by the caregiver.

A caregiver has worked for you in your later years; How can you to safely include this person in your will or your trust? Can you avoid the accusations that destroyed this 91-year-old’s wishes?

To avoid the Brea woman’s result, consider a few specific rules from both the Probate Code and from common sense experience to show that the senior receiving the health care –the employer- has not been unduly influenced to name the care provider as an estate beneficiary. Probate law in California reflects years of problems with caretakers of the elderly. Following these rules may help to avoid both the appearance of – and actual—undue influence by the targets of the law.

Statutory Guidelines
First, the statutes provide that a senior changing her planning documents to benefit a caregiver should not act either 90 days before or 90 days after the provider comes to work for her. That makes sense: nobody gives her estate to a person she just met three months ago unless she had somehow been “hypnotized” by being with the caregiver 24 hours a day. The senior in this situation should see an attorney and wait for the time to pass; don’t present the image of being hustled by a new health care giver.

Second, make sure your lawyer introduces you to an attorney who is not a part of her firm to interview you and complete the form provided in the Probate Code. Keep this Independent Review with the documents you receive.

Practical Guidelines
In the common sense area, don’t take the health provider to see the lawyer, and don’t let your health provider be your trustee; get someone else. If you don’t have a family member or friend for the job, find a Private Fiduciary to take you to the lawyer and serve as your Trustee/Executor/Agent. Otherwise, it looks like you’ve been steam-rolled, and it makes the government nervous.

Likewise, don’t discuss your plan with your caregiver, ever. This is something which leads to problems. Keep the process to yourself; don’t let him or her see the documents when they are done. Instead, spend time with outside persons other than your provider. Remember that the image of the isolated senior is what the courts and the agencies are looking for when they examine these cases for people who may have been victimized.

Further, ask your lawyer about a “life estate” instead of making an outright transfer to the caregiver. This helps the provider during his or her life, and then delivers the asset to your friends, family or a charity following the caregiver’s death. Name a third party (not the provider) as the trustee (perhaps a private fiduciary) instead of the caregiver. This level of control on your part is not consistent with “undue influence,” and should calm the courts and placate the prosecutors.

At the same time, don’t name the provider as the sole beneficiary, or even the largest beneficiary. It just looks too suspicious. Name family, a Church, a School or a Hospital as beneficiaries along with the provider.

Remember, there are both good and bad people in every profession. The Probate Code is not there to punish the elderly, it exists to protect us. If there is a caregiver who objects to any of the suggestions above, it may be time to search for a new health care provider: this one may only be looking after his or her own well being, not for yours.


Hunsberger Law is a full-service estate and business planning legal firm, with estate planning attorneys and a licensed, professional fiduciary on staff. Connect with Don Hunsberger by calling (714) 663-8000 or visit www.hunsbergerlaw.com

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