California’s Care Custodian Statute
Here are some excerpts from the introduction:
Probate Code section 21350 presumptively voids testamentary gifts to “a care custodian of a dependent adult.” No other state bars devises to caregivers. Yet Section 21350 defines “care custodian” and “dependent adult” broadly. A “care custodian” includes any non-relative “providing health services or social services to an elder or dependent adult.” A “dependent adult” is anyone over sixty-four “whose physical or mental abilities have diminished because of age.”
I highlight four points that I believe have not received their due in the debate over how to reform Section 21350. The first is that California courts uniquely respect testamentary autonomy. In other states, scholars complain that “courts are as committed to ensuring that testators devise their estates in accordance with prevailing normative views as they are to effectuating testamentary intent.” This is not so in California. The “care custodian” provision–which substitutes a categorical legislative determination for a testator’s express wishes–deviates from this tradition. Second, the legislature enacted Section 21350 to create a presumption of wrongdoing when lawyers receive devises in estate plans they had authored. However, California common law already recognized that exact presumption. Thus, the statute changed little about a lawyer’s right to inherit from a client. Yet when with little fanfare the legislature extended the statute to caregivers, it fundamentally altered a caregiver’s ability to accept a legacy from a patient. At the same time, the good reasons to preclude lawyers from profiting from their own draftsmanship do not apply to caregivers.
Third, the Law Revision Commission offers three rationales for retaining the “care custodian” clause: (1) caregivers have the opportunity to exert undue influence; (2) elders depend on caregivers; and (3) gifts to caregivers seem inherently “undue.” To be sure, caregivers enjoy dominion over impaired elders. Yet caregivers provide services that, even if remunerated, are selfless and socially beneficial. As a normative matter, it is unclear why gifts to caregivers should be suspect. Fourth, an inflexible rule is not a good fit for the deeply personal question of a testator’s intent. The undue influence doctrine covers the same terrain at less risk of disregarding autonomy or penalizing kindness.