“And to Mary Kay Morgan, I bequeath my home and the sum of $250,000,” the lawyer intoned.
Sara gazed at her sister, Mary, her eyes filled with questions. “Who the heck is Mary Morgan?” she whispered.
Mary shrugged. “No idea. Maybe Uncle Hank had a girlfriend or something?”
Sara’s eyes narrowed. “Sounds fishy to me. We all know Uncle Hank got a little flighty before his death. Maybe some scam artist sunk their claws into him. We need to check this out.”
When the lawyer finished reading the will, Sara raised her hand. “Excuse me,” she said. “But who is Mary Morgan?”
A young woman stood and turned to her. “I’m Mary Morgan. I was Hank’s neighbor. I ran errands for him, sometimes I helped him with things around the house, like the cooking, cleaning, and the laundry.” She swiped at a tear. “I didn’t expect him to leave me anything in his will, we were just friends. When he got older and began to have difficulty taking care of himself, I just did what neighbors do. I helped him out.” She wiped away another tear. “I really miss him.”
Mary jumped to her feet and shouted. “Why you little conniving harpy! You worked your way into Uncle Hank’s affections and convinced him to leave you a chunk of his money!” She placed her hands on her hips and glared at the younger woman. “No way are you getting away with this. We’ll see you in court!”
While a testator is free to dispose of his property as he sees fit, many questions arise when bequests are made to caregivers. Under California probate law, undue influence or fraud is presumed on the part of a caregiver who gains financially (other than salary) from a relationship with a “dependent adult” who receives their care. However, state law does permit a testator to overcome that presumption with what’s called a Certificate of Review.
A Certificate of Review is a document completed by an attorney and a “dependent adult” that states the caregiver gift was made intentionally and without undue influence. The counsel preparing the certificate must be independent, which means he or she did not draft the will or trust that includes the bequest to the caregiver. In addition, they are prohibited from having a legal, financial, or other relationship with the caregiver. The attorney and testator must meet outside the designated caregiver’s presence and during that meeting, the attorney determines whether the individual is of sound mind and acting of their own free will. If there is any indication that the bequest is being made under undue influence or as the result of fraud, the attorney must refuse to issue a Certificate of Review.
Generally, the certificate should be sought anytime an older adult wishes to make a bequest to a “care custodian” who is not a family member. The courts have interpreted that term to include salaried caregivers, as well as friends and neighbors who have provided assistance with tasks that may include laundry, grocery shopping, cooking, bathing, or monitoring medication schedules.
Exempt from the Certificate of Review requirement are family members as well as individuals who served as caregivers without any compensation and
- had a personal relationship with the dependent adult for a minimum of 90 days prior to providing such services
- the relationship lasted for a minimum of six months prior to the demise of the dependent adult, and,
- the relationship was in existence prior to the time at which the dependent adult entered hospice care are exempt from the presumption of undue influence.
However, stepchildren or unmarried partners are not exempt.
Gifts made to a “care custodian” without a Certificate of Review are open to challenge by heirs, relatives, and others with an established financial interest. Without the certificate, the intended recipient must provide “clear and convincing evidence” that they did not unduly influence or take advantage of the older adult making the gift. That burden of proof may be difficult to overcome.
In most cases, the presumption of undue influence applies to gifts made by “dependent adults,” individual 65 or older who are dependent on others for their care. However, an adult of any age may also be considered dependent if they suffer from mental deficits that prevent them from effectively managing their financial affairs or preventing fraud or undue influence.
Generally, gifts that exceed $5,000 in value or are made from estates valued at less than $150,000 are suspect.
A Certificate of Review not only protects vulnerable adults, but also caregivers who are legitimately bequeathed gifts by grateful patients. For that reason, to ensure that a caregiver receives a gift legally intended, it is best to err on the side of caution and execute a Certificate of Review to accompany other estate planning documents.