California Probate Code Section 21350 provides a presumption of invalidity when an elder or dependent adult makes a donative transfer to his or her care custodian. Part I of this Comment examines the climate in which Section 21350 was enacted, including a summary of the law that traditionally governed contests of testamentary transfers on the grounds of undue influence prior to the statute's enactment. Part II argues that the statutory definition of "care custodian" should encompass only professional care custodians. Part III supplies the textual amendments that should be made to provide sufficient clarification of the term's meaning. Part IV concludes that the statute's amendment would continue to protect vulnerable elders or dependent adults from being taken advantage of by those with whom they have a fiduciary relationship, while simultaneously protecting their right to devise their estates according to their wishes and allowing for the reward of those who care for their ailing friends.
The original title of this article in print was: "The Danger of a Label: How the Legal Interpretation of "Care Custodian" Can Frustrate a Testator's Wish to Make a Gift to Personal Friend."
Kirsten M. Kwasneski,
The Danger of a Label: How the Legal Interpretation of "Care Custodian" Can Frustrate a Testator's Wish to Make a Gift to a Personal Friend, 36 Golden Gate U. L. Rev.