Is This Really Elder Abuse???

I recently litigated a Caregivercase that left me somewhat conflicted.  When you finish reading this article, I welcome your comments.

In less than a decade, California is expected to be the grayest state in the nation.  Presently, the average life expectancy in California is 81 years old.  As a growing number of elders choose to live out their lives in their homes, there is a growing demand for home care services.  Often referred to as “caregivers” or “care custodians,” these are the people who will be tending to a generation that bequeath hundreds of billions of dollars each year.

Let’s call these elderly folks “dependent adults.”  You may know of someone who is a dependent adult.  You may even have a parent or uncle who is a dependent adult.  Often, the care custodian provides the only social interaction for the dependent adult.  Family members may visit rarely, if ever.  The dependent adult may not even have family.  So it’s understandable that a dependent adult will often see the caregiver as not only a friend, but the only person who truly cares.  Sometime, the caregiver really is the only person who truly cares.  Unfortunately, this environment is ripe for financial exploitation a.k.a “elder abuse.”

Picture the following scenario:  Imagine that Elanor, an elderly woman, made a new Will leaving half of her estate to her caregiver, Bae.  Bae had often complained of her financial dire straits and how difficult it was to care for her three young children following the unexpected death of her husband.  Let’s assume that the whole time Bae was planting the seed in the hope that Elanor would leave her something in her Will.  Let’s further assume that, when Elanor changed her Will, she had full cognitive capacity to make financial decisions.  That is, she didn’t suffer from dementia or some other mental illness.

Elanor’s children, because of their busy lives, rarely called or visited.  After Elanor died, her children learned of her new Will and they promptly petitioned the court to invalidate the gift. They won.  Bae received nothing from the Will.

The California State Legislature has recognized the special vulnerability of elders and created a statute to protect against the risk of financial exploitation, regardless of capacity.  The concern was that in-home caregivers might unduly influence vulnerable seniors and manipulate them into handing over their estates.  Originally, California courts held that only professional or paid caregivers fell into the disqualified category within the meaning of the statute.  However, in 2006, the California Supreme Court held that “care custodian” included unpaid caregivers, even friends who simply shopped, did banking, and cooked for the senior.

There can be no denying that there are unscrupulous types that work in the home care industry.  However, the expansive interpretation of the law results in disqualifying gifts even to well-meaning friends.  Do you think that Bae should have lost out entirely?


2 thoughts on “Is This Really Elder Abuse???

  1. This is really interesting. I definitely see the legal dilemma. My grandparents are in this stage of life right now, and there have definitely been people who’ve tried to financially exploit them. So I’m sensitive to this issue. But, I think for all the good intention behind this protective law, we need to be careful never to compromise liberty in the name of compassion. If a person of whatever age can be shown to be of sound mind they should have the right to allocate their will to whomever they choose. It is also elder abuse to treat them as incompitent when they are not.

  2. I agree, Leilani. It seems that often times the courts are more concerned about the family members than the decedent’s intent. In my case, the judge believed that because the caregiver kept talking about her crappy life, that was somehow a veiled form of undue influence.

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