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:
 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
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
 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.
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