Caregivers cannot accept gifts from elders without being at risk for committing financial elder abuse.
If an older adult chooses to gift an estate or substantial sum of money to their caregiver, California Probate Code requires that the drafter (usually the lawyer) obtain a Certificate of Independent Review from an independent attorney. This means the lawyer drafting the will or trust must bring in an independent attorney to assess the situation.
This is because when an older adult makes a gift of this sort to their caregiver, the law automatically assumes that elder financial abuse is present unless the drafter obtains the required certificate [California Probate Code Sections 21380(3) and 21384(a)]. While this presumption of fraud or abuse may seem extreme, this type of elder abuse is actually very common and can often appear harmless on the outside.
Even if the caregiver obtains a certificate of independent review, they may still be at risk for a financial elder abuse lawsuit.
We recently had a case involving an elderly man and the gift of his estate to a caregiver. The man, who had dementia and was physically dependent on medical devices, had gifted the entirety of his assets to a caregiver he had known for less than two years. His family was distraught over the change they saw in the elderly man under her care, and it was not until his death they learned he had left everything to her. In this case, the caregiver had personally arranged for the elderly man’s estate plan to be done.
It is likely that the caregiver was unduly influencing the man, as he lacked mental capacity and was very dependent on her for physical assistance. Furthermore, the lawyers who drafted the will in this case did not obtain the required independent review.
We eventually resolved the case and were able to recover a substantial portion of the man’s estate for his family members. The case could have easily gone to trial – and the caregiver would have potentially had to give back everything she’d inherited – plus damages.
Financial elder abuse is far more prevalent than most of us know. Many caregivers are wonderful, loving individuals who may feel deserving of gifts from their patients. Nevertheless, caregivers and family members alike must be extremely reticent when it comes to material exchanges between elders and their caregivers. California law is clear – any gift to a caregiver is presumed to be attained through undue influence.
If you believe financial elder abuse is occurring, call our Walnut Creek Financial Elder Abuse Law Firm at 925-322-1795 for your consultation.