Estate and Elder Law

Zimring on Calif. Limits on Transfers to Disqualified Persons after Jan. 1, 2011

Gifts from a dependent adult to a care custodian have long been prohibited or restricted under the California Probate Code. New law, effective for instruments that become irrevocable after January 1, 2011, excludes from the definition of care custodian persons who provide care out of friendship if there is no remuneration and other requirements are met. In this Analysis, Stuart D. Zimring discusses the new rules governing donative transfers. He writes:

[2] Revised Definition of "Care Custodian"

     The existing definition of "care custodian" found in Probate Code § 21350(c) is revised in Probate Code § 21362 as follows:

"(a) "Care custodian" means a person who provides health or social services to a dependent adult, except that "care custodian" does not include a person who provided services without remuneration if the person had a personal relationship with the dependent adult (1) at least 90 days before providing those services, (2) at least six months before the dependent adult's death, and (3) before the dependant adult was admitted to hospice care, if the dependent adult was admitted to hospice care. As used in this subdivision, "remuneration" does not include the donative transfer at issue under this chapter or the reimbursement of expenses.

(b) For the purposes of this section, "health and social services" means services provided to a dependent adult because of the person's dependent condition, including, but not limited to, the administration of medicine, medical testing, wound care, assistance with hygiene, companionship, housekeeping, shopping, cooking, and assistance with finances."

     This new section essentially eliminates from disqualification persons who provide care out of friendship so long as there is no remuneration involved and the relevant timing considerations are met. However, it should be noted that if remuneration is received at any time, the protection of the statute will not apply. Further, elder law attorneys should remain sensitive to the fact that merely providing "companionship" can result in a person being deemed a "care custodian."

[3] Revised Definition of "Dependent Adult"

     The new statute continues the statutory requirement that disqualification only applies to a care provider if the transferor is a "dependent adult." Under Probate Code § 21350(c), "dependent adult" was defined in Welfare & Institutions Code § 15610.23. This definition has proved to be problematic since it is very broad and can include many persons who need some assistance because of some physical or mental disability but who are not, as a result, made more susceptible to undue influence as a result of the disability.

(footnotes omitted)

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