Berge & Berge, LLP Blog

Tuesday, February 23, 2016

California Uses A Presumption To Confirm The Legitimacy Of Gifts To Caregivers

How does the State of California determine whether gifts to caregivers are fraudulent?

It is a story we have heard countless times before: an elderly or incapacitated person who is dependent on caregivers decides at the last hour that he or she wants to give one or more of these people a gift from his or her estate. It is the case many times that the caregivers pressured or tricked the person into making these gifts. So, how can the probate court be sure that gifts made legitimately are not the product of fraud or undue influence? The State of California now uses a legal presumption.

What is a legal presumption?

A legal presumption is a fact that is taken as true without proof. Some presumptions are rebuttable and can be disproven with the correct evidence. That is the type of presumption we are dealing with in California

What is the presumption regarding gifts to caregivers in California?

Throughout the state there is a presumption that gifts to caregivers are the product of fraud or undue influence. Therefore, if the caregiver wants to receive the gift, he or she must go to court and present evidence that the gift is legitimate. There are various types of people that need to prove with clear and convincing evidence that the gift to them was made in good faith. These include any individual that drafted the instrument by which the gift is made, any individual in a fiduciary relationship with the person making the gift that caused the instrument to be transcribed, any caregiver and employee, among others. A Certificate of Independent Review from a disinterested attorney can also rebut the presumption. This attorney’s duty is to evaluate the gift and to determine if it is legitimate under the circumstances. Essentially, obtaining a Certificate of Independent Review removes the need for a court hearing.

If you are thinking of making a gift to one or more of your caregivers, you want to make sure it will hold up after you pass away. An experienced elder law attorney can assist you in ensuring the viability of this gift. Contact the California estate planning attorneys at the Law Offices of Berge & Berge for a consultation today.


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