Legal-Ease: An Attorney’s Perspective: Gifts for Your Caregiver: The Pitfall You Didn’t Know About

March 24, 2017 • Columnists, Legal-Ease

By Staci Yamashita-Iida, Esq.

Coming from a Japanese American community, I grew up calling my friends’ parents “Auntie” and “Uncle.” As a kid, I never questioned it. I understood we weren’t related, yet in my mind, there was no doubt that they were my family.

These days, the term “family” isn’t exclusively defined by blood relation. Family can be your stepmother, brother-in-law or your best friend. In fact, sometimes the ones you are unrelated to seem more like family than your actual relatives. Family refers to your loved ones — the people who you care for the most who are always there for you.

For many elderly individuals, this modern interpretation of family applies to their caregivers. This is especially the case for elderly individuals who see their caregivers more than anyone else. Caregivers become integrated into the family, or in some situations, like the example below, caregivers become the only family an individual has.

The Example

Shizuko has lived a long and happy life. She finds, however, that old age is both a blessing and a curse. Throughout her 94 years, she has parted with her husband, siblings and most of her friends. Coming from a small family and having no children of her own, Shizuko finds herself all alone, but for Lola.

For the past six years, Shizuko has employed Lola as her caregiver. Lola comes over four times a week for six hours each day, during which time Lola takes Shizuko to her doctor’s appointments, cooks her meals and does light housekeeping.

Over the years, Shizuko and Lola have grown very close, blurring the line between employer and friend.

Shizuko spends Thanksgiving dinner at Lola’s house and even sends Lola’s children presents on their birthdays.

Shizuko still pays Lola weekly for her services, but she views Lola more like an adopted daughter than an employee. As such, when it comes time to drawing up her living trust, Shizuko names Lola as the sole beneficiary of her estate.

The Issue

The sincere and innocuous relationship described above is often the case with many caregivers. However, because the elderly can be vulnerable and susceptible to elder abuse, safeguards have been created to shield them from potential harm.

The Probate Code (which governs inheritance and estate issues in California) specifically states that donative transfers to the transferor’s care custodian are presumed to be the product of fraud or undue influence. In plain English, this means that if you leave a gift to your caregiver (particularly one that is not related to you), the law assumes that the caregiver malevolently forced you to do so.

This rule was created with the intention of protecting the elderly from being taken advantage of by their caregivers. There are many stories of caregivers who persuaded individuals with dementia to unknowingly sign a will bequeathing valuable jewelry and cars to the caregiver. Or worse, there have been cases where caregivers threatened to cease work, i.e., to stop feeding and bathing the individual, unless the individual agreed to leave the caregiver a large sum of money upon his or her death.

This, among many other reasons, is why the Probate Code presumes that all gifts made to an unrelated caregiver through a will or trust (or similar instrument) are the result of undue influence, fraud or duress.

The Solution

This article is certainly not intended to vilify caregivers. Caregiving is an arduous and stressful task that many people cannot handle. Unfortunately, there are always a few bad apples in the bunch, which is why the law scrutinizes acts involving a caregiver.

So, what if you have a caregiver whom you truly regard as family? How do you thank them for their time and efforts without issue? Fortunately, the Probate Code has an answer.

Let’s go back to the Shizuko and Lola example.

If Shizuko wants to prevent Lola from experiencing any trouble from the inheritance that she will receive, then Shizuko would hire an attorney to conduct a Certificate of Independent Review (CIR).

The attorney must be an impartial third party who has nothing to gain by being involved. The attorney would speak to Shizuko privately (without Lola present) to counsel Shizuko about the nature and consequences of the intended gift.

The attorney may ask why Shizuko wants to leave her home to Lola, as opposed to a distant relative or church, to gauge Shizuko’s state of mind. If the attorney determines that Shizuko made the decision to include Lola as a beneficiary on her own free will, then the attorney would draft a CIR. If another person ever questioned or contested the gift to Lola in the future, the CIR would serve as evidence against the complaint.

A CIR is a great tool to use if you want to protect your caregiver’s interest in the future. As mentioned, caregiving is one of the toughest jobs there is. If you have a caregiver that you consider family and you want to show your appreciation by leaving him or her a gift without issue, consider speaking to an attorney to learn more about a Certificate of Independent Review.

Staci Yamashita-Iida, Esq. is an Estate Planning attorney at Elder Law Services of California. She can be contacted at (310) 348-2995. The opinions expressed in this article are the author’s own and do not necessarily reflect the view of the Pacific Citizen or JACL. The information presented does not constitute legal advice and should not be treated as such.

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