Metropolitan News-Enterprise


Wednesday, November 29, 2006


Page 1


Elderly Woman’s Gifts to Live-In Caretaker Held Invalid


By TINA BAY, Staff Writer


A paid live-in caregiver hired to run personal errands for a dependent adult is a “care custodian” whose gifts from the adult are presumed invalid, the Fourth District Court of Appeal ruled yesterday.

Div. Two unanimously affirmed an order by Riverside Superior Court Judge Stephen D. Cunnison denying a woman’s petition to probate wills executed by her former employer in 2002.

After 87-year-old Helen L. Odian died in January 2003, Catharina Vulovic sought to probate Odian’s living will and pour-over will naming her the sole beneficiary of Odian’s $3 million estate. Odian had executed a will in 1997 leaving her estate to her sister, who died later that year, and seven charities.

In Feb. 2002, however, Vulovic completed and Odian signed fill-in-the-blank forms for a living will as well as a pour-over will and trust naming Vulovic sole beneficiary. Odian later executed a new pour-over and restated trust preserving Vulovic’s sole beneficiary designation, and also named Vulovic and her children the successor beneficiaries of her annuity contracts.

Richard Robinson, Odian’s long-time financial adviser and acquaintance, contested the 2002 wills and sought to invalidate the trusts and annuities. Joined in the contest by the seven charities named in the 1997 will, Robinson filed a petition to probate the earlier will.

At trial, Robinson presented the testimony of an experienced psychologist and geriatric psychiatrist who visited Odian in her home. Based on their interviews and observations, both experts concluded Odian suffered cognitive impairment and was vulnerable to undue influence.

Cunnison found the wills and trust invalid as the product of Vulovic’s undue influence. He also found Vulovic and her family were disqualified as beneficiaries under Probate Code Sec. 21350(a)(6), which presumptively invalidates gifts by a dependent adult to a “care custodian.” This presumption can be overcome only through a showing by clear and convincing evidence that the gift did not result from undue influence.

Appealing the judgment, Vulovic argued she could not have been Odian’s a care custodian because she had a personal relationship with her, was not professional caregiver, and did not provide the type of services defining a care custodian’s role.

Vulovic had worked as Odian’s paid live-in companion for approximately two years before Odian was hospitalized and transferred to a nursing home in Aug. 2002.

Odian initially hired Vulovic in 2000 to do housework and laundry, cook, and drive her to appointments and shopping trips. Because she had hurt her back and lost her driver’s license in February 2000, she could not perform household tasks or transport herself for errands.

Vulovic agreed at first to work full-time for one month but at Odian’s request later moved in and became her permanent paid caregiver.

The two eventually developed a personal relationship. Vulovic celebrated holidays with Odian and invited her to family gatherings, including her son’s wedding. Vulovic’s children and grandchildren frequently visited Odian at home and the residential care facility where she later moved.

Vulovic began helping Odian pay her bills in 2001. At some point, Odian gave Vulovic a power of attorney and the caregiver began writing and signing checks from her employer’s account.

In 2001, Robinson began to notice her memory failing and her expressive abilities declining. Though he was concerned about her capacity to make a trust, Robinson suggested that she create a living trust to avoid probate of her estate.

He arranged to have the trust and pour-over will prepared by the attorney who drafted her 1997 will. He also made an appointment with her for March 2, 2002 to obtain her signature on the instruments and discuss her taxes.

On March 1, Robinson received a faxed letter written by Vulovic and signed by Odian. The communication said Odian was canceling her appointment with him and intended to write her own will.

According to the deposition testimony of Odian’s friend who died before trial, the elderly woman had expressed appreciation for Vulovic’s help and said she wanted to leave Vulovic her estate.

The Court of Appeal concluded that although Vulovic provided Odian with services that were personal in nature, she fell within the statutory definition of “care custodian.”

Under the Welfare and Institutions Code, a care custodian is any person who provides “health services or social services” to elders or dependent adults.

Writing for the Court of Appeal, Justice Art McKinster said Vulovic, as Odian’s live-in caregiver, clearly provided her employer with social services.

 “[A]n expansive interpretation of ‘social services’ to include personal services provided by an in-home caregiver best promotes the Legislature’s objective of protecting vulnerable dependent adults from exploitation,” he explained.

It was immaterial, the jurist said, that Vulovic was arguably not a professional caregiver.

Justices Barton Gaut and Jeffrey King concurred in the opinion.

Vulovic’s appellate counsel, Mark A. Lester, told the MetNews he was disappointed in the ruling and has not yet decided whether to petition for high court review.

“I think the court went too far in finding that she was a care custodian,” he said.

“What I think is the danger is that because the court is expanding who gets included under ‘social services,’ virtually any chauffeur, maid, cleaning lady, gardener, is performing a social service and therefore could be deemed a care custodian if they’re doing it for someone over age 65.”

Gerald M. Serlin, the contestants’ counsel, responded:

“The likelihood of a gardener being able to purloin someone’s inheritance is really very slight, and I think a court could adequately guard against that....I think this is an important decision because it defines the scope of people covered by the statute.”

The case is Estate of Odian, 06 S.O.S. 5759.


Copyright 2006, Metropolitan News Company