Take care when giving to your caregiver
by Charles Warner
“There are only four kinds of people in the world – those who have been caregivers, those who are currently caregivers, those who will be caregivers, and those who will need caregivers.”1
Care giving is a difficult task. Those who receive the care (“the care receivers” or “dependent adults”) are totally dependent upon their caregivers to maintain their complete care and maintenance. Caregivers can be family members (relatives) or non-relative paid employees. It is not uncommon for patients to desire to give gifts to their paid caregivers, presumably because the “dependent adult”, as the law refers to the “care receiver”, wants to show his or her gratitude for the services rendered above and beyond the agreed upon payment. This can include gifts during the care receiver’s lifetime and/or through a gift of funds or property of some kind from the care receiver’s estate upon his or her death.
In 2011 the California state legislature amended the laws that relate to gifts to non-relative, paid caregivers. The legislature decreed that: Such gifts are presumed by law to be the product of undue influence by the caregiver, resulting in the gifts being void, in other words, non-existent. The law sounds insensitive, however, these laws were passed because the legislature felt it was and is important to take a hard look at such gifts and to ensure that the gifts were made freely, voluntarily, happily and in good faith and were not the product of pressure or undue influence from the caregiver.
The relationship between the caregiver and the dependent adult is most often a particularly constant and steadfast one and it may be difficult for the dependent adult to see through his or her gratitude and to remember that the caregiver is an employee. The legislature was acting in what they perceived as the best interests of the dependent adult when they decreed that such gifts should be subject to scrutiny and further ensure that the gifts were made freely and without undue “sweet talking” from the caregiver.
It is also important to keep in mind that although these transfers are presumed invalid, invalidity is usually established when, and if, the gifts(s) are attacked after your death by an unhappy heir in a court proceeding.
The above presumption of fraud or undue influence can be overcome by obtaining a “Certificate of Independent Review” from an attorney.
California’s Disqualified Person statute requires a separate “Certificate of Independent Review” when a dependent adult wishes to make a gift, for example, to the dependent adult’s caregiver or others who are in a position to exert undue influence to obtain the gift. Assuming all goes well, this may allow you, as a “dependent adult”, to give a gift to your Caregiver.
How does one obtain a Certificate of Independent Review?
A lawyer has to interview you, the “dependent adult” and conclude that the transfer of the desired gift of your money and/or property is not the product of “fraud, menace, duress or undue influence”. This Certificate should make the transfer of the gift valid, despite the law’s presumption of fraud or undue influence. Attached to this article is an example of a Certificate of Independent Review so you can be aware, in advance, of the type of questions you might be asked.
If a Certificate of Independent Review was obtained before the 2011 statute the legal authorities suggest that a new (i.e. post 2011) Certificate be obtained. The problem with a “new certificate” is that while you met the requirements for a Certificate in the past, given the nature of the disease you may not meet them meet in 2012 or thereafter. Hopefully, this apparent lack of understanding by the legislature will soon be resolved by legislative amendments and/or the courts.
Nevada has a statute much like California’s. There is a legislative note to the new California 2011 statute stating that there are similar laws in “many other states” but they do not go on to mention what states those might be. If you are in another state, you really need to consult with an estate attorney in that state and learn what the law may or may not be with regard to this issue. 2
Many Alzheimer’s patients supplement the services of hard-working family caregivers who provide an invaluable service and sometimes become trusted and beloved employees who work with the care receiver and their families for many years. The purpose of this article is simply to educate people that there are some legal steps that must be taken if they decide to remember a non-relative, paid caregiver with a bequest (gift) in a will or trust. They run the risk that their wishes will not be carried out if it is not handled in accordance with the law. 3
Download the Certificate of Independent Review – not to be used without the assistant of an attorney.
1 Rosalynn Carter, Former First Lady of the United States.
2 On selecting an appropriate attorney see Perspective’s issue of Summer 2012, Volume 17, Number 4
3 From the author: I am an early stage Alzheimer’s patient. I did practice law for decades, but for obvious reasons am no longer doing so. Thus, this article is not intended to give you legal advice, just alert you to issues about which you may wish to seek legal counsel. If anything in this article raises any questions or concerns you may have you should consult and estate and trusts attorney.