Thursday, December 14, 2006

PPS on Undue Influence: The Civil Side

For the season of giving...
Caregivers in California who receive last-minute bequests from those they care for are presumed to have exercised undue influence, even if they were close friends. That’s because of a controversial 1993 law that was recently upheld on appeal (Bernard v. Foley).

Probate Code Section 21350 was enacted following a scandal that involved an estate-planning attorney who named himself and his family as fiduciaries for, and beneficiaries of, clients’ estates. The law lists categories of people who can't inherit unless they can prove that transfers weren't the product of fraud, menace, duress, or undue influence. It includes those who draft wills and trusts and law firms, lawyers, and employees of law firms associated with them. And caregivers.

The suit involved 97-year-old Carmel Bosco, a widow who died childless in 2001, leaving an estate of around $448,000. Two months earlier, she’d moved into the home of an old friend, Ann Erman and Erman’s boyfriend, James Foley. Mrs. Bosco made the move at the urging of Erman, who had previously been married to Bosco’s nephew, Arthur Erman.

Erman and Foley took care of Bosco during the last months of her life, tending her bedsores, administering morphine, preparing meals, and helping to change her diapers. They went through her mail and handled her financial and investment affairs. During that time, Bosco amended her living trust several times, each time giving more to the couple– she'd originally left her estate to family members. A few days before she died, she changed it again, naming Foley and Erman each as 50% beneficiaries

Bosco's family, including nephew Arthur, sued, claiming that Foley and Erman had exerted undue influence over Mrs. Bosco, who was gravely ill and heavily sedated when she changed the trust the last time. The case got down to whether Foley and Erman were care custodians, and therefore, covered under the law. Foley claimed that he and Erman were simply “performing acts of kindness on a purely volunteer basis as good friends often do for others.” The trial court agreed.

But the family appealed, the court of appeal reversed, and the California Supreme Court agreed with the appeals court, writing that “a caregiver may be a personal friend, and in fact, personal friends are uniquely in a position to unduly influence the elderly for whom they care.” Chief Justice George agreed with the majority but suggested that the law be amended to differentiate between long–term caregivers and those who provide care for short periods of time.

In response, in September, the California Assembly passed AB 2034, sponsored by the State Bar Trusts & Estates Section, which directs the California law Revision Commission to study Section 21350. The Commission is expected to begin looking at the issue in March.

8 comments:

Anonymous said...

It is somewhat disconcerting to me that caregivers are automatically considered to have used undue influence if they are named in someone's will. This leaves the burden of proof on the caregiver to convince the court that they did not engage in undue influence. It seems that this might be a hard fact to prove. Our legal system is founded on the belief that a person is assumed innocent until proven guilty. This law assumes that a person is guilty until they can prove their innocence. Isn't this against the basic tenets of our system? Does anyone else have any thoughts on this?

Jim & Tatiana said...

I agree with anonymous that it's a little disturbing to presume guilt whenever caregivers get last-minute bequests. On the other hand, if caregivers are excluded from the category covered under probate code section 21350, what protections are there to keep unscrupulous ones from pressuring dying people to change their wills or trusts or even accept innappropriate gifts from people who are under the influence of heavy medication and duress. At least if caregiver have to prove they're acting in good faith, it would encourage them to take measures that would help them show they didn't use undue influence. Not sure what that would be exactly and would appreciate hearing what lawyers think. Would that mean having witnesses or a reputable lawyer present to vouch for the elder's frame of mind? I can't imagine that a responsible caregiver wouldn't want that anyway under the circumstances.

Lisa Nerenberg, Consultant, Speaker, Trainer said...

Since we're posing questions to lawyers, I was surprised by the need for the 1993 law to prevent lawyers from making themselves fiduciaries and beneficiaries of incapacitated clients' estates. Hadn't it at least been grounds for disbarment before then?

Anonymous said...

Personally, I am grateful that there is any law at all that helps to protect dependent adults from unscrupulous caregivers. After my father's stroke, his "caregiver" isolated him from the family and used her malicious influence to alienate him from everyone who loved him, inlcuding his precious granddaughter. She took him to the indian casinos almost every day. While he told people he went there for company, his credit card receipts told a different story. This once wealthy man would have gone to indigent care if he had not died when he did (of pneumonia, the day after yet another trip to the casino while sick). I thought he was protected after the family spent about $200K in court to get him set up with a Trustee, but even now I am faced with disputing her as recipiant of his life insurance - thank goodness for 21350. She stole him from us, and stole his golden years from him. Personally, I am grateful that I don't have to spend even more money to prevent her from taking every last dime of his legacy.

Anonymous said...

We've lost our common sense. Read the narrative. These two people took care of bedsores, gave meds and took care of this man. Where was the family? They don't deserve his money. The two who helped him in his last days, and he knew it, and gave it to them. The law should not interfere.

senior day care centers said...

“a caregiver may be a personal friend, and in fact, personal friends are uniquely in a position to unduly influence the elderly for whom they care.” - I agree. It will take less time to make a "connection" since they know each other.

Anonymous said...

Where are the families is the question. Siblings will accuse their own sibling caregiver of undue influence, etc. to cheat the one who sacrificed all to care and 'live' in the hospital etc. for mom. How does it even make sense that a person ill with still a good mind, which not to reward the one they are close to, there for them, for a lifetime. There needs to be better protections for the caregivers. If I become a dependant elder, those who try to keep me going will be rewarded. One should ask themselves this question before jumping on others.

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