October 21, 2019 – The California Legislature has closed loopholes in the Probate Code that allow abusive caregivers to marry their way into a dependent adult’s wealth. Assembly Bill 328, recently signed into law by Governor Newsom, takes effect on January 1, 2020.
The new law will create a presumption of undue influence that applies in two scenarios―that of “dependent adults,” who are defined as an adult of any age who cannot provide properly for his or her basic needs or who has difficulty managing his or her financial resources or resisting fraud or undue influence; and the “donative transfers” covered by the statute include lifetime gifts as well as beneficiary provisions in wills and trusts.
For about two decades, California law has presumed that a dependent adult who signs an instrument benefiting a “care custodian”―i.e., a caregiver who provides health or social services to a dependent adult―does so as a result of fraud or undue influence such that the instrument is presumptively invalid.
However, the law exempts spouses, domestic partners and cohabitants who receive gifts from dependent adults. The exemption rests on the reasonable assumption that people naturally are inclined to make gifts to those who are close to them.
The exclusion permitted an opportunistic care custodian to marry a dependent adult so as to avoid the presumption of invalidity.
