ANGELA ANN BERNARD et al., Plaintiffs and Appellants, v. JAMES FOLEY, as Trustee, etc., Defendant and Respondent.
No. S136070
Supreme Court of California
Aug. 21, 2006.
794, 795, 796, 797, 798, 799, 800, 801, 802, 803, 804, 805, 806, 807, 808, 809, 810, 811, 812, 813
Robert M. Neubauer for Plaintiffs and Appellants.
Mark T. Eagan and Donna Bader for Defendant and Respondent.
OPINION
WERDEGAR, J.—In this case we determine whether close personal friends of a dependent elder who at the end of her life provided her with personal care, including health care, are “care custodians” for the purposes of statutory provisions that presumptively disqualify care custodians as beneficiaries of testamentary transfers from dependent adults to whom they provide such services. (
We conclude that when an unrelated person renders substantial, ongoing health services to a dependent adult, that person may be a care custodian for purposes of the statutory scheme at issue, notwithstanding that the service relationship between the individuals arose out of a preexisting personal friendship rather than a professional or occupational connection. Accordingly, we affirm the judgment of the Court of Appeal.
On August 28, 1991, decedent Carmel L. Bosco executed the Carmel L. Bosco Revocable Living Trust (Trust). Over the years, decedent amended the Trust seven times. Plaintiffs, relatives of decedent, brought this action seeking to invalidate the seventh, and final, amendment.
Decedent, a widow with no children, was close to her extended family. Plaintiff Angela Ann Bernard is a niece, Ann Cassell is decedent‘s sister, Arthur G. Erman and Benny Tumminello are nephews, and Cathy Lee Miller is a nephew‘s successor in interest. Defendant James Foley is the successor trustee of the Trust. Folеy and his girlfriend, Ann Erman (hereafter Erman), were longtime personal friends of decedent. For two months before her death, decedent resided at the Riverside home shared by Foley and Erman, who jointly cared for her during her final illness.
Three days before she died, decedent executed the seventh amendment to the Trust, pursuant to which Foley and Erman each became a 50 percent residuary beneficiary. Neither had been named as a beneficiary in earlier versions of the Trust.
Plaintiffs petitioned the court to invalidate the seventh amendment to the Trust and for a determination of beneficial interests in the Trust estate. They alleged that: (1) decedent was dependent on Foley and Erman, inter alia, for custodial care, from approximately July 15, 2001, until her death; (2) the seventh amendment was the product of undue influence by Foley and Erman; (3) decedent lacked testamentary capacity when she executed the seventh amendment because she was gravely ill and heavily sedated; and (4) Foley and Erman were disqualified to receive a testamentary transfer from decedent because they had been her “care custodians” within the meaning of
A bench trial was held at which various witnesses testified, including Foley, Erman and some of the plaintiffs. The parties disputed whether Erman or Foley had received payment for the room, board and services they provided to decedent. Foley and Erman denied they had; Foley in his brief to this court asserts that in any event they “certainly wеre not under a duty” to take care of decedent. “They were simply performing acts of kindness on a purely volunteer basis as good friends often do for others.” The trial court noted that “Ann Erman had a personal relationship with decedent founded on a familial bond,”2 ruling that, although there was some evidence of compen
The Court of Appeal reversed, holding that Foley and Erman were “care custodians” of decedent and they had failed to rebut the statutory presumption that decedent‘s donative transfer to them was procured by undue influence. The Court of Appeal remanded the cause with directions that the trial court enter a new judgment invalidating the seventh amendment to the Trust. We granted Foley‘s petition for review.
Discussion
A. Statutory Disqualification of Care Custodians
Part 3.5 of division 11 of the
Once it is determined that a person is prohibited under
As we previously have observed, this statutory scheme supplements the common law doctrine that “a presumption of undue influence, shifting the burden of proof, arises upon the challenger‘s showing that (1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instrument‘s preparation or execution; and (3) the person would benefit unduly by the testamentary instrument.” (Rice v. Clark (2002) 28 Cal.4th 89, 97; see also Graham v. Lenzi (1995) 37 Cal.App.4th 248, 257; Estate of Swetmann (2000) 85 Cal.App.4th 807, 816–817, and cases cited therein.)
That decedent was a dependent adult is undisputed.6 The question is whether Foley and Erman fit the statutory definition of “care custodian.”
Before the Court of Appeal in this case rendered its decision, two other Courts of Appeal had concluded that a person who cares for a dependent adult out of a preexisting personal friendship, rather than in an occupational or professional capacity, does not fall within the definition of “care custodian” in
Davidson concerned the estate of an elderly woman, Dolores Davidson, who late in life changed her will and trust so as to benefit a personal friend and neighbor, Steve Gungl, who had cared for her during her declining years. Four years before her death, Davidson executed a will and pour-over trust leaving most of her estate to Gungl, thereby revoking her earlier will and trust that had left most of her estate to her cousin Elaine Morken. In the last decade of Davidson‘s life, Gungl and his life partner visited Davidson often, took her to the doctor, and helped her with household chores. As Davidson declined, Gungl and his partner assumed ever greater responsibility for her, doing her shopping, paying her bills and taking care of her banking. For her part, Davidson treated Gungl and his partner like family, calling them “her boys.” (Davidson, supra, 113 Cal.App.4th at p. 1042.)
Morken and her husband, who had lived out of state, moved at one point to California but had infrequent contact with Davidson until they learned she had executed an estate plan favoring Gungl. Thereafter, they made a series of complaints to adult protective services, the police and Davidson‘s neighbors. Ultimately, Davidson was placed in a conservatorship under the charge of the public guardian, her house was sold, and she was placed in a nursing home, where she declined and died. After her death, the Morkens sued to invalidate
The Court of Appeal affirmed the trial court‘s ruling. (Davidson, supra, 113 Cal.App.4th at pp. 1050-1051.) The court opined that “the statute bars donative transfers to individuals who have assumed the role of ‘care custodian’ to a dependent adult incidental to the professional or occupational provision of health or social services to that dependent adult, rather than in connection with a personal or familial relationship; and whose personal relationship, if any, with the dependent adult is entirely incidental, secondary to, and derived from the preexisting professional or occupational connection.” (Id. at p. 1052.) Accordingly, the court held, “when an individual becomes what is in effect a care custodian of a dependent adult as a direct result of a preexisting genuinely personal relationship rather than any professional or occupational connection with the provision of health or social services, that individual should not be barred by
In McDowell, supra, 125 Cal.App.4th 659, Kathryn McDowell, an elderly woman living alone, became friends with two men, Reza Fatipoor and another, whom she asked to live in her home in exchange for taking care of her. Two years later, in early 2000, Fatipoor introduced McDowell to Ann Netcharu. McDowell and Netcharu became friends, Netcharu frequently visiting McDowell and bringing her food. In June 2000, McDowell was hospitalized for a broken hip. After her discharge, Netcharu visited her often and regularly brought her meals. Netcharu eventually started taking care of McDowell‘s personal needs, including bathing and hygiene. Netcharu did not receive payment for these services.
In September 2000, Fatipoor and Netcharu took McDowell to an attorney who prepared a will for her, naming Fatipoor and Netcharu executors and sole beneficiaries. McDowell told a doctor friend of the attorney, who interviewed her, that she was leaving her money to Fatipoor and Netcharu because they were assisting her. During these months, while McDowell‘s
In January 2001, a permanent conservator appointed for McDowell petitioned for authority to revoke her will and to execute a trust and new will benefiting Guide Dogs for the Blind. The conservator asserted that Fatiрoor and Netcharu had used undue influence over McDowell to gain control of her assets and that McDowell lacked testamentary capacity when she signed the will benefiting them. The trial court rejected these claims. Nevertheless, the court ruled that Netcharu was a “care custodian” and, as such, had failed to rebut the presumption of undue influence arising under
The Court of Appeal reversed. Quoting Davidson, the court observed that “‘[t]he controlling question is whether the relationship between the caregiver and the dependent adult arose out of the provision of health or social services, or whether instead the provision of care developed naturally from a preexisting genuinely personal relationship.‘” (McDowell, supra, 125 Cal.App.4th at p. 673.) Applying that principle, the court concluded the evidence did not support the trial court‘s finding that Netcharu was a care custodian. She was neither a professional nor an occupational caregiver, nor was there any evidence “she generally offered care services to the elderly and dependent adult population as a paid or volunteer provider.” (Ibid.) Neither was there evidence that Netcharu‘s relationship with McDowell “grew out of a preexisting professional or occupational connection” (id. at p. 673). Rather, the court found, the evidence showed that Netcharu was a well-meaning friend.
As noted, the Court of Appeal below declined to follow Davidson and McDowell in recognizing a preexisting personal friendship exception to statutory care custodian status. The Court of Appeal held, to the contrary, that “the definition of care custodian is broad indeed, extending to persons providing health services or social services to elderly or dependent adults.” Reviewing the services Foley and Erman had provided to decedent, the court noted they were of the sort often rendered by practical nurses.8 The court concluded the evidence established that Foley and Erman came within the statutory definition.
In resolving the issue before us, we look first to the statutes’ words, as these “‘generally provide the most reliable indicator of legislative intent.‘” (People v. Leal (2004) 33 Cal.4th 999, 1007.) As noted, the Legislature has provided that the term “care custodian” for purposes of
In its entirety,
Thus, the statutory definition of “care custodian” expressly includes “[a]ny other ... agency or person providing health services or social services to elders or dependent adults.” (
Here, the uncontroverted evidence shows that Foley and Erman rendered various services to decedent during the two-month period she resided with them, including health services. Decedent was incapable of caring for herself, so she was dependent on Foley and Erman for her daily needs. Foley did decedent‘s grocery shopping, prepared some meals for her and occasionally attended to her personal needs, including helping to change the diapers she wore. Foley also made decedent‘s bed and assisted her with bathing. He applied topical medications to decedent‘s body, sometimes with Erman‘s assistance. Additionally, Foley went through decedent‘s mail for her and, for the last six weeks of decedent‘s life, handled all her financial and investment affairs, including her bank accounts.
During the same period, Erman prepared meals for decedent, spent every day with her, assisted her in getting to and from the bathroom, helped her into bed, fixed her hair, cleaned her bedroom and did her laundry. Erman washed decedent‘s face and hands on days when the visiting hospice nurses were not present to bathe her. She administered oral medications to decedent, including liquid morphine to assist decedent when she was having difficulty breathing, dosages of antidepressant drugs, anxiety medication and codeine cough syrup. She helped decedent apply ointments to a rash that had developed in her intimate areas. Erman also cared for decedent‘s wounds, applying salves and antibiotics to sores on her legs and thereafter bandaging those areas. Devices for monitoring decedent‘s breathing were placed in decedent‘s and Erman‘s bedrooms so that Erman could monitor decedent‘s breathing.
In sum, the record reflects that both Foley and Erman provided substantial, ongoing health services to decedent while, at the end of her life, she was residing in their home and that it was during this period that decedent amended her Trust to include the donative transfers at issue. Foley concedes
Foley argues that the Court of Appeal in any event erred in focusing on the kind of services he and Erman provided. He urges us to focus instead on whether they provided services on an occupational or professional basis, in the manner of the “public or private facilities or agencies, or persons providing care or services for elders or dependent adults” (
In essence, Foley‘s argument is that the language of
The ejusdem generis canon “presumes that if the Legislature intends a general word to be used in its unrestricted sense, it does not also offer as examples peculiar things or classes of things since those descriptions then would be surplusage.” (Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 141.) Here, even if the entities the Legislature has included in subdivisions (a) through (x) of
Seeking further to buttress his ejusdem generis argument, Foley points to the requirement in subdivision (y) that the agencies or persons provide dependent adults with health or social services. (
We disagree with Foley that, in ordinary parlance, one who prepares meals for or applies ointments to another person does not provide that person a service.10 When construing statutory language, we are, absent contrary direction, bound to give the words the Legislature chose their usual and ordinary meaning. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) While some of the numerous dictionary definitions of the noun “service” may carry commercial connotations, others do not. (See Webster‘s New Internat. Dict., supra, at p. 2288 [listing 30 definitions].) We discern nothing about the language of Welfare and
In light of the statutory language, we conclude Foley‘s claim that he and Erman did not serve decedent‘s health care needs must fail. We find no professional or occupational limitation on the definitional statute‘s pronouncement that “care custodian” means, among other things, any person providing care or health services to a dependent adult. (
Finally, Foley argues that he and Erman were not custodians of decedent. He cites dictionary definitions of “custodian” that connote a legal or official caretaking function. He argues that because they were not legally bound to provide decedent a residence or care, neither he nor Erman can properly be considered to have been her custodian.
Notwithstanding the cited dictionary definitions of custodian, nothing in the statutory language suggests the Legislature, when еnacting or amending the statutory scheme, understood itself to be using the word “custodian” in a sense that presumes a contractual or other legal duty. The statutory definition of “care custodian” (
2. Legislative history
The Legislature added part 3.5 to the Probate Code in 1993 and substantially amended it in 1995. (Stats. 1993, ch. 293, § 8, p. 2021; Stats. 1995, ch. 730, §§ 12-17, pp. 5480-5483.) On the only previous occasion we have had to examine this statutory scheme in any depth, we observed that “[t]he 1993 legislation was introduced in response to reports that an Orange County attorney who represented a large number of Leisure World residents had drafted numerous wills and trusts under which he was a major or exclusive beneficiary, and had abused his position as trustee or conservator in many cases to benefit himself or his law partners.” (Rice v. Clark, supra, 28 Cal.4th at pp. 97-98 (Rice), citing Assem. Com. on Judiciary, Analysis of Assem. Bill No. 21 (1993-1994 Reg. Sess.) as amended Feb. 4, 1993, p. 1.) We noted that “[t]he scheme set out in part 3.5 differs from the preexisting decisional law relating to undue influence (and
We went on in Rice to discuss certain amendments to the statutory scheme that were relevant to the issue before us there (see Rice, supra, 28 Cal.4th at p. 98), but we have had no occasion specifically to address the legislative history of
Other California courts, however, have recognized that the purpose of
In Davidson, supra, 113 Cal.App.4th 1035, the court stated that a legislative committee report indicated that the 1997 amendment to
Contrary to the Davidson court‘s statement, the portion of the committee report it cited addressed not what effect the Legislature intended the 1997 amendment to have, but the state of existing law at the time the amendment was being considered. The relevant sentence in the report reads in full: “Existing law provides a presumption of invalidity that applies to gifts made to lawyers or other fiduciaries, but not to practical nurses or other caregivers hired to provide in-home care.” (Sen. Com. on Judiciary, com. on Assem. Bill No. 1172 (1997–1998 Reg. Sess.) p. 4.)11 The report, in the same section, noted that the general problem the amendment was intended to address, one obviously not restricted to paid caregivers, was that “care custodians are often working alone and in a position to take advаntage of the person they are caring for.” (Id. at p. 4.)
In sum, neither the statutory scheme presumptively disqualifying care custodians from receiving testamentary transfers, nor the definition of “care custodian” the Legislature adopted for the purposes of that scheme, contains or implies an exception for preexisting personal friends of a dependent adult to whom they provide health care services. Were we, moreover, to create such an exception, we would render redundant the express statutory exception for the transferor‘s relatives and domestic partners. (See
The Legislature‘s failure to include an express friendship exception within the statutory scheme is significant, because the Legislature knows how to craft such an exception when it wishes to do so. The Legislature has expressly promulgated a friendship exception in another context involving the protection of elderly persons, the Residential Care Facilities for the Elderly Act (
Even more tellingly, the Legislature in
“In enacting
Some of the persons described in
In short, neither the statutory language nor the legislative history supports a preexisting personal friendship exception to
3. Public policy
Citing the principle that where uncertainty exists as to the meaning of statutory language, consideration should be given to the consequences that will flow from a particular interpretation (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387), Foley argues, finally, that undesirable public policy consequences will follow our affirming the judgment of the Court of Appeal.
First, Foley notes it is sometimes infeasible for nurses to administer health care services to dependent adults, whether because needs arise when a nurse is not present or because the family is financially unable to secure professional assistance solely to apply an ointment or bandage or to administer medications to the dependent adult. He emphasizes that when he and Erman administered medications and applied ointments to decedent, they were proceeding pursuant to the instructions of a nurse who attended decedent. If the Court of Appeal decision is affirmed, Foley asserts, one can envision circumstances where a caregiver instructed by a nurse to apply a topical ointment refuses to do so for fear of invalidating a gift.
Finally, Foley urges the interests of potential beneficiaries whose prospects may be affected by the statutory scheme. Lacking a certificate of independent review, a potential beneficiary may have difficulty overcoming a
We acknowledge that application of the statutory scheme to particular care custodians may in some instances result in inequity. But in light of the statute‘s language and history, “we need not strain to discern (because we are not free to impose) a universally ‘desirable result in terms of public policy’ ” (Samuels v. Mix (1999) 22 Cal.4th 1, 20 [91 Cal.Rptr.2d 273, 989 P.2d 701]). Moreover, even were we authorized to impose the exceptions Foley proposes, we are not persuaded good policy would counsel that we do so. Rather, unless and until the Legislature declares otherwise, we believe the result we reach makes practical sense in a society that is experiencing a rise in elder abuse cases.
The statutory scheme neither states nor implies that to qualify as a care custodian an individual must receive compensation. (See Estate of Shinkle, supra, 97 Cal.App.4th at p. 1006 [volunteer ombudsman was care custodian].) Concern about fairness to volunteer health care providers is ultimately unfounded because
Finally, we find Foley‘s specter of caregivers refusing to perform services for fear of losing a testamentary gift unpersuasive. Any caregiver who would for that reason alone abstain from helping an elderly friend would by hypothesis be a caregiver with designs on being included in the elder‘s future estate plan—precisely the situation the statutory scheme was meant to address. (See Osornio v. Weingarten, supra, 124 Cal.App.4th at pp. 318-319; Bank of America v. Angel View Crippled Children‘s Foundation, supra, 72 Cal.App.4th at p. 456.)
This, we emphasize, is not a case where preexisting friends who were testamentary beneficiaries of a testator subsequently became care custodians; Foley and Erman became beneficiaries of the Trust only pursuant to changes decedent made in her will while she was living with them and they were providing her with care services.
C. Undue Influence
Independently examining the record, the Court of Appeal concluded that Foley had failed to adduce substantial evidence to rebut the statutory presumption that decedent‘s transfers to him and Erman were the product of undue influence. (See
For the foregoing reasons, the judgment of the Court of Appeal is affirmed.14
George, C. J., Baxter, J., and Chin, J., concurred.
GEORGE, C. J., Concurring.—I wholly agree that
I also observe that the circumstances of the present case illustrate the Legislature‘s well-founded concern—reflected in its adoption of statutory language sufficiently broad to encompass uncompensated caregivers—that individuals acting as unpaid care custodians of a dependent adult and not related to that adult potentially may exercise undue influence over their charge as readily as professional or occupational care custodians.1
At the same time, it appears to me that in other, fairly common factual circumstances involving uncompensated caregivers, application of these statutory provisions may disserve the legislative goals implicit in their enactment. Accordingly, notwithstanding our customary and proper reticence in encouraging legislative action, in the present context I believe the Legislature would do well to cоnsider modifying or augmenting the relevant provisions in order to more fully protect the interests of dependent adults and society as a whole, by according separate treatment to longer term care custodians who undertake that role as a consequence of a personal relationship rather than as an occupational assignment.
The matter before us presents, in the words of plaintiffs’ attorney at oral argument, “a classic case of what the Legislature was trying to protect against.” As explained in the majority opinion, relatives of the decedent filed suit to invalidate the seventh and final amendment to Carmel Bosco‘s trust, executed three days prior to her death, that for the first time made defendants her sole residual beneficiaries. As is apparent from evidence received at the trial, several amendments closely preceding (and apparently anticipating) the final amendment to the trust belie the conclusion that Bosco acted merely out of personal preference. Considered in light of the statutory presumption that we have held applicable to uncompensated care custodians who become beneficiaries of a testamentary instrument, these amendments (including the final amendment) together with the other evidence in the record do not constitute substantial evidence in support of the trial court‘s alternative finding—premised upon its assumed application of the statutory presumption—that defendants had rebutted the presumption.
Carmel Bosco died childless on September 28, 2001, at 97 years of age, leaving an estate valued at approximately $448,000. Bosco had created the trust in 1991. Apparently to ensure the payment of expenses associated with the continuing care of Bosco‘s youngest sister, Ann Cassell (one of the plaintiffs herein), as an Alzheimer‘s patient, Bosco designated Ann to receive one-third of the trust estate. Bosco named other relatives as co-equal beneficiaries of the residual estate, and named a successor trustee (succeeding Bosco) and an alternate trustee. In the first three amendments, made between 1991 and early 2001, Bosco named different successor trustees. Erman and Foley, longtime personal friends of Bosco‘s, were not mentioned in the original trust or in the first three amendments.
Within several months preceding her death, however, Bosco amended the trust four times. The fourth amendment, dated June 12, 2001, was the final amendment executed in the presence of Bosco‘s attorney, Marc Eagan, who drafted the original trust and all seven amendments. The fourth amendment for the first time named defendant Foley as a successor cotrustee with Patricia Tally (a relative of Bosco‘s who had assisted her with her daily needs during the preceding four years), changed Ann Cassell‘s one-third interest in the estate from an outright distribution to a life estate, to be held in the trust and used for Cassell‘s care in amounts deemed reasonable by the trustees in light of other available income and resources, and provided that, of the 11 relatives named equal residual beneficiaries, Michael Colca (who had become disabled) would receive distributions of his share in the trustee‘s “absolute discretion.”
The sixth amendment to the trust, dated September 11, 2001, deleted the names of Michael Colca and two other relatives, so that eight relatives remained as beneficiaries of the residual estate. The seventh amendment, dated September 25, 2001, deleted the name of an additional residual beneficiary, and eliminated entirely Ann Cassell‘s one-third life estatе interest in the trust estate. In explanation, Foley testified that Bosco had been informed that Cassell would be supported by Cassell‘s husband, Alvin, although Alvin testified such a conversation did not take place. For the first time, it was provided (in the seventh amendment) that the seven remaining relatives, formerly designated equal beneficiaries of the residual estate, instead would receive $25,000 each. For the first time, defendants were designated sole residual beneficiaries, giving them, in view of the estate‘s estimated value of $448,000, the “lion‘s share” of the estate. In drafting the amendment, Marc Eagan, Bosco‘s attorney, did not inform Bosco that Foley and Erman would receive the majority of the estate.
II
The circumstances underlying the present case illustrate the Legislature‘s wisdom in including, within the meaning of the statutes presumptively disqualifying a care custodian from becoming a testamentary beneficiary of the dependent adult, uncompensated friends or acquaintances who provide substantial, ongoing health or other services to a dependent adult. (
In my view, it is questionable whether the uncompensated individual who in a nonoccupational capacity provides substantial, ongoing health services to a dependent adult for an extended period and eventually is made his or her beneficiary, should be subject to the identical presumptive disqualification and burden of proof imposed upon an individual who assumes the role of an unpaid caregiver for a relatively brief period preceding the dependent adult‘s fаvorable modification of a testamentary disposition, at a time that is fairly proximate to death.
As a practical matter, the justification for presuming an exercise of undue influence is less compelling when an individual having a preexisting personal relationship with the dependent adult renders health care and other services over a relatively lengthy period of time. First, the likelihood is less that a personal friend gratuitously providing substantial, ongoing health care services over a lengthy term is motivated by the prospect of obtaining undue economic benefit by coercing a testamentary modification. Second, an uncompensated but well-established caregiving relationship affords greater opportunity to the donor‘s relatives and other interested parties to observe the course of the relationship and to resolve any concerns occasioned by the caregiver‘s position of trust and potential ability to exert undue influence.
As a matter of policy, it is of doubtful social efficacy to apply the statutory presumption and evidentiary burden to an individual who in a nonprofessional capacity undertakes the serious responsibilities attending the long-term care of a dependent adult. To do so is counterintuitive to our sense that the uncompensated efforts of such an individual, benefiting the dependent adult in question and society in general, should be recognized and encouraged.
Our most basic judiciаl task in the case before us consists of construing the statutory enactment in its present form and not in crafting or recommending its modification. Manifestly, the majority has accomplished the former task,
Accordingly, I would suggest legislative modification of the relevant statutes to exempt or otherwise limit application of the statutory presumption of undue influence in the case of uncompensated care custodians who provide long-term health care and other services for dependent adults. Such an exemption or limitation might resemble a standard originally applicable in the federal taxation of estates. Formerly, a decedent‘s estate was required to include in the gross estate all gifts made “in contemplation of death,” a descriptiоn that presumptively included the value of all gifts made by the decedent within three years of his or her death. (See
In similar fashion, for purposes of testamentary transfers, the language in California‘s statutes conditionally disqualifying donative transfers to a care custodian—subject to rebuttal of the presumption of undue influence (
CORRIGAN, J., Dissenting.—I respectfully dissent. If the Legislature wanted
The statute does refer to persons who provide care.2 However, this reference is immediately followed by the phrase “including members of support staff and maintenance staff.” Individuals providing care on a personal basis do not do so through support or maintenance staffs. Therefore, the language the Legislature chose clearly expresses an intent to encompass only those involved in providing services in a professional or formal capacity.
The remainder of the statute confirms this conclusion. It lists 24 categories of care providers, all of whom act in a professional or formal capacity. The term person does not appear again until the 25th category, which is “[a]ny other protective, public, sectarian, mental health, or private assistance or advocacy agency or person providing health services or social services to elders or dependent adults.” (
The legislative history supports this reading. “As made clear by discussion of the legislation in an analysis prepared for the Senate Judiciary Committee, the enactment of the amendment adding ‘care custodians’ to the list of presumptively invalid recipients of donative transfers was intended to apply to gifts made ‘to practical nurses or other caregivers hired to provide in-home care.’ (Sen. Com. on Judiciary, com. on Assem. Bill No. 1172 (1997-1998 Reg. Sess.) p. 4.) The original proponent of the proposal for the amendment was the Estate Planning Trust and Probate Law Section of the State Bar of California in its annual omnibus bill. In a document prepared by that section discussing the proposed amendment, the ‘Purpose’ of the amendment was described as ‘to prevent the growing “cottage industry” of “practical nurses”
The majority opinion discounts the conclusion of Davidson, supra, 113 Cal.App.4th 1035. “Contrary to the Davidson court‘s statement, the portion of the committee report it cited addressed not what effect the Legislature intended the 1997 amendment to have, but the state of existing law at the time the amendment was being considered. The relevant sentence in the report reads in full: ‘Existing law provides a presumption of invalidity that applies to gifts made to lawyers or other fiduciaries, but not to practical nurses or other caregivers hired to provide in-home care.’ (Sen. Com. on Judiciary, com. on Assem. Bill No. 1172 (1997-1998 Reg. Sess.) p. 4.)” (Maj. opn., ante, at p. 810.)
I am not persuaded. Instead, it appears that the committee was observing that the existing state of the law was unsatisfactory and that its reach should be extended to “practical nurses or other caregivers hired to provide in-home care.” (Sen. Com. on Judiciary, com. on Assem. Bill No. 1172 (1997-1998 Reg. Sess.) p. 4, italics added.)
In terms of public policy, it seems unwise to penalize Good Samaritans by making them less eligible to receive the gratitude of those they help, the kinder they have been.3 As the majority opinion points out, Foley and Erman welcomed the decedent into their own home and performed a variety of challenging, personal, and distasteful tasks to ease the burdens of her final illness. (Maj. opn., ante, at p. 805.) The law should not cast a jaundiced eye on those who provide such care to family or friends, and there is no reason to believe the Legislature intended such an outcome.
Foley and Erman may have performed thеse acts in order to unduly influence decedent. They may also have simply been benevolent people willing to help another soul in need and to whom the decedent wanted to
The majority opinion observes, “The Legislature‘s failure to include an express friendship exception within the statutory scheme is significant, because the Legislature knows how to craft such an exception when it wishes to do so.” (Maj. opn., ante, at p. 811.)
However, it is also significant that the Legislature did not amend the statute to “clarify” its intent after Davidson, supra, 113 Cal.App.4th 1035, and Conservatorship of McDowell (2004) 125 Cal.App.4th 659 [23 Cal.Rptr.3d 10].
Moreover, the majority misplaces the emphasis here. This case does not require the creation of an exception. The statute under consideration is itself an exception to the general rule that one may freely dispose of personal assets. Thus, the statute should be interpreted narrowly in terms of the exception it creates.
While it is certainly true that nonprofessionals may take advantage of the infirm, it is also true that the kind and generous may act graciously to ease the suffering of those in need. Thе motives at play in any given case is the kind of factual question the trial court exists to resolve. Absent a clear legislative pronouncement to the contrary, we should allow the court to do so without an artificially imposed presumption.
The majority observes, “Concern about fairness to volunteer health care providers is ultimately unfounded because
Kennard, J., and Moreno, J., concurred.
Notes
“(b) For purposes of this section, ‘a person who is related by blood or marriage’ to a person means all of the following: [¶] (1) The person‘s spouse or predeceased spouse. [¶] (2) Relatives within the third degree of the person and of the person‘s spouse. [¶] (3) The spouse of any person described in paragraph (2). [¶] In determining any relationship under this subdivision,
“(c) For purposes of this section, the term ‘dependent adult’ has the meaning as set forth in
“(d) For purposes of this section, ‘domestic partner’ means a domestic partner as defined under