Testamentary Gifts to “Care Custodian”

In her Comment, The Danger of a Label: How the Legal Interpretation of “Care Custodian” Can Frustrate a Testator’s Wish to Make a Gift to Personal Friend, 36 Golden Gate U. L. Rev. 269 (2006), Kirsten M. Kwasneski (J.D. Candidate, 2007, Golden Gate University School of Law) explains the problems with a California statute which limits gifts to care custodians (Calif. Prob. Code § 21350).

Here is the conclusion of her article:

In expanding Section 21350’s presumption of invalidity to include “care custodians,” the [California] legislature has created an ambiguity as to whom the term encompasses. This ambiguity has manifested itself in the conflicting decisions of California appellate courts. The First District’s holding that only professional care custodians are included within the statute’s scope is in direct contrast with the Second District’s view that personal friends who provide care are also included. The California Supreme Court has granted a petition for review of the decision reached by the Second District in Bernard v. Foley, but it has not yet reached a determination. However, a statutory amendment would best clarify the statute and achieve consistency in application by California courts. The text of Section 15610.17 of the California Welfare and Institutions Code, which provides the definition of “care custodian” for purposes of Section 21350, should be amended to include only professional care custodians.  A study of the legislative history leading up to the enactment of Section 21350 supports a finding that only professional caregivers were meant to be included. Furthermore, the traditional law of undue influence is better suited to govern contests that pertain to testamentary transfers to personal friends, who should fall outside the scope of Section 21350’s presumption of invalidity. Modification of the wording of the definition of “care custodian” would clarify that only a professional care custodian falls within its scope.  This would protect the testamentary right to disposition and allow for reward of the charitable provision of care given by well-meaning friends to ailing elders during their declining years, without sacrificing the protection of such vulnerable dependent adults.