dependent adult


In addition to seemingly endless gift lists to satisfy, the holiday season presents many with the perplexing issue regarding service tipping.

Consumer Reports magazine states in the December issue that gratuities, in general, rose by approximately $5.00 over the previous holiday season. In general, Consumer Reports found that the experts they surveyed recommended a one-week service fee match for the total amount of the tip.

In my own case, the biggest tip will go to the caregivers for my parents. My Dad is 93 and Mom is 91. They are still able to live in their own home with the assistance of caregivers who come in each day to prepare meals, take them to the doctor, and any place else they want to go. They also provide an extra set of eyes and ears to report on how my folks are doing from day to day.

Most caregivers are unpaid family members who volunteer their services, or live in the home of their parent rent free. In these cases, when money is not available to show appreciation, I suggest that you take the time to write a genuine thank you note to the relative providing the care. As Ralph Waldo Emerson said, “the only gift is a portion of thyself”.

Where an elder has a 24-hour caregivers or neighbors who provide care, the decisions on a holiday gratuity are not the issue. Often they have little communication with relatives and family who have moved from the area. These elderly and dependent adults are easy prey to the darker side of care giving…the caregiver or neighbor who talks the elder into making a substantial gifts to the them in a will or trust.

Caregivers are one category of people the State of California would rather you left out of your will. If the person receiving the care is a “dependent adult” (a person who has physical or mental limitations that restrict his or her ability to carry out normal activities, or whose physical or mental abilities have diminished because of age) they will have to jump through a few extra hoops to leave anything substantial to their caregiver. This is because many dependent adults are too weak of body or mind to resist the influence of a caregiver who suggests a trip to the lawyer’s office to make changes to their will. As a general rule in California, gifts to caregivers by a dependent adult in a will or trust are void unless certain conditions are met.

There are legal ways to leave some part of an estate to a caregiver. The law specifically exempts gifts of $3000 and some small estates. For larger gifts, California requires the client meet with a second attorney to explain why they would want to make a gift to the caregiver. The second attorney must then certify that the client is not making the gift as a result of fraud, menace, duress or undue influence.

In a recent interpretation of this law, the California Supreme Court, in Bernard v. Foley, ruled that the definition of a caregiver includes relatives and friends who provide care for a nominal cost or no cost at all, not just professional paid caregivers. By widening this definition, many friends of dependent adults, that provide any ongoing health or social service, will find themselves falling within the definition of “care custodian”, which could in turn bar them from donative transfers intended for them in wills and trust.

When in doubt, any person desiring to gift money from a will or trust to a person who has provided them care giving service, paid or not, should make sure proper legal steps are taken to ensure that the gift will not be voided by failing to follow the proper legal procedures.