Friday, April 02, 2010

Is Your Well-Meaning Friend Out of Luck?

Establishing your estate plan is a very personal and sensitive task.  More important than the actual money or property that you leave to a loved one is the acknowledgment of appreciation that mentioning someone in your estate plan conveys.  However, without careful planning, sometimes the best intentions can accidentally create a legal mess.

In 1992, the L.A. Times ran a series of articles about estate planning attorney James D. Gunderson who had an office within Leisure World, a Southern California gated retirement community.  Mr. Gunderson had a habit of inserting himself in his clients' estate plans.  Over the years, his clients "left" him millions of dollars in cash and other property.  Many observers questioned the propriety of the estate plans Mr. Gunderson drafted.  In response, the California legislature passed Probate Code Section 21350 which disqualified estate planning gifts made to the drafting attorney, the law partners of the drafting attorney, and employees of the drafting attorney with narrow exceptions.

Five years later, in 1997, the California legislature added a new sub-section to Probate Code Section 21350 which also made "a care custodian of a dependent adult" disqualified from receiving gifts through estate plans.  The concern was that in-home caregivers might unduly influence vulnerable seniors and manipulate them into handing over their estates.  Originally, California courts held that only professional or paid caregivers fell into the disqualified category within the meaning of the statute.  However, in 2006, the California Supreme Court case of Bernard v. Foley held that "care custodian" included unpaid caregivers, even friends who simply shopped, did banking, and cooked for the senior.  This expansive interpretation of the law results in disqualifying gifts to well-meaning friends of the senior.

Fortunately, there is a saving grace.  If you intend to leave part of your estate to a friend who occasionally runs errands for you, the best practice is to have a second attorney sign a "Certificate of Independent Review" which states that the second attorney has explained the estate plan to you and believes that you are not under undue influence or fraud.  If your estate plan creates a gift for a friend, you may want an attorney review it to make sure the "Certificate of Independent Review" procedure is not necessary.  Your estate plan may have been created prior to the 2006 case.  Furthermore, what was a friend at the time you signed your estate plan may have since turned into a "care custodian."