Metropolitan News-Enterprise


Thursday, September 22, 2005


Page 1


State Supreme Court Agrees to Rule on Definition of ‘Care Custodian’ in Dependent Adult Protection Law


By a MetNews Staff Writer


The California Supreme Court yesterday agreed to determine whether someone who is not a professional caregiver, but helps take care of a dependent adult friend, may be characterized as a “care custodian” under a statute making it difficult for that person to receive a gift under the dependent adult’s will or trust.

Justices, at their weekly conference in San Francisco, voted 5-0 to review the June 30 ruling of Div. Three of this district’s Court of Appeal in Bernard v. Foley, B168665. The lower panel said that James Foley and Ann Erman, close friends of Carmel L. Bosco who took care of her in the last days of her life, were Bosco’s care custodians within the meaning of Probate Code Sec. 21350.

A portion of that section, enacted in 1997, bars the “care custodian” of a dependent adult from receiving a donative transfer from his or her charge except as provided in Sec. 21351.

The latter section permits the bequest under certain specified conditions, including where the named beneficiary can prove by clear and convincing evidence that the bequest was not procured by fraud, menace, duress, or undue influence.

Such a showing is not necessary, however, if an independent attorney engaged by the transferor certified to the transferor in writing that he or she reviewed the transfer and determined that it was not procured by fraud, menace, duress, or undue influence.

Presiding Justice Joan Dempsey Klein, writing for the Court of Appeal, said that Foley and Erman failed to rebut the presumption of undue influence and that an amendment to Bosco’s trust in their favor was therefore invalid.

The evidence, Klein explained, showed that Foley and his girlfriend Erman—who was formerly married to Bosco’s nephew, one of the family members who challenged the amendment—cared for Bosco in their home for two months before she died.

 The challenged trust amendment, giving the entire trust residue to Foley and Erman, was executed three days before Bosco died. Neither Foley nor Erman was a relative of Bosco, nor had either been named in the original trust document or in any of the six previous amendments.

Retired Los Angeles Superior Court Judge Robert O’Brien, who sits on assignment, held that Foley and Erman were not care custodians within the meaning of the statute, so the burden of proof was on the challengers to show undue influence. After a five-day bench trial, O’Brien ruled that there was no undue influence and upheld the seventh amendment.

Klein, writing for the Court of Appeal, disagreed. Because Foley and Erman took charge of Bosco’s health needs, they were her care custodians within the meaning of the legislation and were subject to the presumption. Since there was no independent evidence of the circumstances leading up to the execution of the seventh amendment, Klein added, the presumption was not overcome and the amendment was invalid.


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