The general rule in California is that any donative transfer by a dependent adult to a caretaker, referred to as “care custodian” in California, is void. A donative transfer essentially means something that is given as a gift. This general rule, however, applies only if the document under which the gift was made, such as a will or trust, was signed by the person making the gift during a period of time in which the care custodian was providing services to the dependent adult, or within 90 days from the time that services were rendered.
“Dependent Adults” Defined
The general rule applies only if the gift is made by a “dependent adult.” A “dependent adult” is a person at least 18 years old who was unable to provide for her own personal needs, such as health, clothing, food or shelter, or had a mental deficiency that rendered her incapable of managing her own financial affairs or resisting any influence from the care custodian to make the gift. Whether a person meets the definition of a “dependent adult” is often the subject of litigation and depends heavily on the facts of the case.
“Care Custodians” Defined
Even if the person who made the gift satisfies the definition of a “dependent adult,” the gift is void only if the person who received it qualifies as a “care custodian.” A “care custodian” is a person who provides “social services” to a dependent adult. A “care custodian” does not include a person who (1) provided “social services” for free, and (2) had a personal relationship with the dependent adult for at least three months before providing those services, for at least six months before the death of the dependent adult, or before the dependent adult was admitted to hospice care. California courts have grappled with defining “social services,” as this determination depends largely on the facts of the case.
There are a number of exceptions to the general rule that a gift to a care custodian is void. California does permit such a gift if the person who made the gift is related by blood within the fourth degree to the person who receives the gift, or if the person who receives the gift is the spouse or domestic partner of the person who made the gift. The gift is also allowed if the person who made the gift left property of a combined total of $150,000 or more and the gift was not greater than $5,000. Such a gift is also valid if the person who made the gift received a Certificate of Counsel from an attorney before signing the will or trust naming the care custodian as a beneficiary. If the attorney advises the person about the nature and consequences of such a gift and has no reason to believe such a gift is the result of fraud or undue influence, the attorney can provide the person with a Certificate of Review. Such a transfer is also valid if the care custodian can establish in court that the gift was not the result of fraud or undue influence.