ATTORNEY NEWSLETTER
The Complexities of Probate Code 21350 And Why It Is Now 21380
What is Probate Code 21350?
California Probate Code 21350, introduced in 2010, prohibited caretakers of the elderly from receiving any gifts under their elderly patient’s will once the patient died. While the intent of the statute was good, its aim was a little too wide. For example, often loved ones or old friends or partners might serve as caregivers and then be ineligible for testamentary gifts even though they may be the natural objects of the decedent’s bounty. The courts began to create distinctions in order to separate the deserving from the undeserving, but the situation became very confusing and outcomes too unpredictable in the San Francisco courts and the courts across the country, as well.
The Evolution of Probate Code 21350 to 21380
Not surprisingly, Probate Code 21350 was modified, but the modification did not solve all problems. By 2011, this code had to be further defined with subdivisions in order to help individuals and courts alike best understand the law. The law now reads:
(a) A provision of an instrument making a donative transfer to any of the following persons is presumed to be the product of fraud or undue influence:
(1) The person who drafted the instrument; (2) A person in a fiduciary relationship with the transferor who transcribed the instrument or caused it to be transcribed; (3) A care custodian of a transferor who is a dependent adult, but only if the instrument was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period; (4) A person who is related by blood or affinity, within the third degree, to any person described in paragraphs (1) to (3), inclusive; (5) A cohabitant or employee of any person described in paragraphs (1) to (3), inclusive; (6) A partner, shareholder, or employee of a law firm in which a person described in paragraph (1) or (2) has an ownership interest.
(b) The presumption created by this section is a presumption affecting the burden of proof. The presumption may be rebutted by proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence.
(c) Notwithstanding subdivision (b), with respect to a donative transfer to the person who drafted the donative instrument, or to a person who is related to, or associated with, the drafter as described in paragraph (4), (5), or (6) of subdivision (a), the presumption created by this section is conclusive.
(d) If a beneficiary is unsuccessful in rebutting the presumption, the beneficiary shall bear all costs of the proceeding, including reasonable attorney’s fees.
All in all, this law helped clear the confusion presented by California Probate Code 21350 and added extra measures to protect seniors from caregiver fraud in the State of California.
What This All Means
As most of us know, seniors are a vulnerable population who can be easily taken advantage of by someone, especially those offering around-the-clock assistance in the later years of a senior’s life. Caregivers are critical to this stage of life. But the patients they care for are vulnerable to predation and manipulation. There are laws like the above to protect seniors, but the best protection comes from those who love them and watch out for their financial and physical well-being to the end.
Contact Us
If you or a loved one is troubled by any form of elder abuse or needs probate representation or advice in California, contact the Evans Law Firm at (415) 441-8669, or by email at info@evanslaw.com. We specialize in cases involving physical and financial elder abuse, qui tam and whistleblower law, nursing home abuse, whole life insurance and universal life insurance, and indexed, variable, and fixed annuities.
