December 22, 2011

Care Custodian

Certain individuals are considered to be, generally speaking, prohibited beneficiaries of a person's estate. 

An attorney who drafts a will or trust for a client is generally barred from being a beneficiary under the will or trust. Prob C § 21350(a)(1). This should not come as a mystery to anybody. 

Another prohibited transferee is a "care custodian." Probate Code Section 21362 defines a "care custodian" as one who provides health or social services to a dependent adult, but it excludes those who provided services without remuneration if that person had a personal relationship with the dependent adult:

1. At least 90 days before providing those services; 
2. At least 6 months before the dependent adult's death; or 
3. Before the dependent adult was admitted to hospice care. 

The rationale behind the law is to protect a dependent adult from the nefarious conduct of a care custodian who can easily manipulate the adult into naming the care custodian as a beneficiary. This can be a very easy situation to envision. The care custodian is often entrusted with ostensibly parental duties for the dependent adult. For example, the care custodian often clothes, feeds, bathes and transports the adult on a daily basis. The pair can then easily form a close bond. Aided by this close relationship, the care custodian can easily influence the adult into writing them into their will or trust.

However, despite the foregoing, a dependent adult may still make a valid transfer to a care custodian if an independent attorney has provided a certificate of independent review ("CIR") after performing his or her due diligence in regards to the proposed transfer. Prob C §§21351(b), 21384. Moreover, the drafting attorney needs to inform the dependent adult of the need for the CIR, since the proposed transfer will fail without one, or else the attorney may liable for professional malpractice. Osornio v. Weingarten (2004) 124 CA4th 304. The use of the term "independent attorney" denotes that the attorney cannot otherwise be involved with drafting the document. Thus, if the dependent adult hired one attorney to write a will and named a care custodian a beneficiary, a second attorney would be needed to draft the certificate of independent review.