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So You Want to Leave Your Estate to Your Housecleaner

California law makes it difficult for someone over 64 years old to leave an inheritance to her housecleaner.

Probate Code section 21350 invalidates certain estate planning distributions from a dependent adult to her care custodian. The intent of the law is to prevent caregivers, who could be in positions of power and influence, to manipulate a vulnerable person.

Probate Code section 21350 invalidates donative transfers to certain disqualified persons. Among its many definitions of disqualified persons is “a care custodian of a dependent adult who is the transferor.”

A “dependent adult” is a person who is between the ages of 18 and 64 who is admitted as an inpatient to a 24-hour health facility . . . or anyone who is older than 64. That is a pretty clear definition. Unfortunately, the definition of a “care custodian” is not.

Probate Code section 21350 refers to Welfare and Institutions Code section 15610.17 for its definition of “care custodian.”Care custodian” means an administrator or an employee of any public or private facilities or agencies, or persons providing care or services for elders or dependent adults. This definition is not limited to paid professional care givers. It includes a person who provides health services or social services to a dependent adult even as a result of a preexisting personal friendship.

The California court has not done a good job of clarifying this statutory definition of care custodian. In Conservatorship of Davidson (2003) 113 Cal. App. 4th 1035, the caregiver’s care included cooking, gardening, driving the dependent adult to the doctor, running errands, grocery shopping, clothes shopping and assisting with banking. The court found that these kinds of errands, chores and household tasks did not rise to care custodian status.

In Bernard v Foley (2006) 39 C4th 797, the caregivers bought groceries, prepared meals, did the dependent adult’s hair, cleaned her house, did her laundry, got her mail and helped her with medications. The court concluded they were care custodians because they provided substantial, ongoing health services and the dependent adult was living with them.

In Estate of Odian (2006) 145 Cal. App. 4th 152, the court explained that a paid live-in caregiver clearly is a care custodian, but the person who lived next door, who was not paid and who took the dependent adult to his doctors appointments, prepared his meals and helped out as needed, was not a care custodian.

While these cases don’t give a clear definition, Probate Code section 21351(b) offers a way out. It provides that if you get a certificate of independent review, then it will be ok to name your care giver in your will or living trust – even if she is considered a care custodian.

The transfer to a care custodian will be valid if the will or living trust is reviewed by an independent attorney who (1) counsels the client (transferor) about the nature and consequences of the intended estate planning transfer, (2) attempts to determine if the intended estate planning transfer is the result of fraud, menace, duress, or undue influence, and (3) signs and delivers to the transferor an original certificate with the required statutory language.

A certificate of independent review is crucial to protect the care custodian’s legitimate right to the inheritance. In Orsonia v. Weingarten (204) 124 Cal. App. 4th 304, a non-client who was the care custodian sued the estate planning attorney for not getting the certificate. The court held that the non-client could maintain a cause of action against the attorney because the attorney owed a duty of care to advise the client that without a certificate of independent review, the intended transfer by will or living trust to the care custodian would likely fail because of the presumptive disqualification under Probate Code section 21350.

So what do you do if you want to leave part of your estate to your housecleaner? Find an independent attorney, not the attorney who drafted your estate planning documents. Have her review your documents and interview you to confirm that everything complies with Probate Code section 21351(b). And then have her prepare a certificate of independent review.

This seems like a big hassle, and it is. But the law is what it is. Follow section 21351(b) and you should be able to reward your housecleaner.

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