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Marlene Cooper Law

The Informed Caregiver

Did you know that we, humans, have added more years to our life expectancy in the past century than in all of history to this point? According to Stanford University’s Center on Longevity, most people living in the mid-1800s only lived to see their mid-30s. Today, the average life expectancy is 78. At this rate, we see three, four, five, even six generations of the same family alive at the same time! As our population lives longer and longer, the demand for caregivers grows and grows, along with the legal issues surrounding their relationship with the persons they care for.

As the field of caregiving grows many new laws are being established. Lawmakers are trying to find a healthy balance between preventing possible elder abuse and protecting the interest of well-meaning caregivers. In my profession, I have see cases where the laws lead to an unjust result. Here’s an example:

Ms. Roth is in her 80s and has recently had a stroke. Her two sons live out of state with families of their own and, though they love their mother, can only come visit two or three times a year. To help her around the house, Ms. Roth hires a younger retired friend from church, Ms. Tina. Ms. Tina helps Ms. Roth cook, clean, pay bills, get to church and even get to her favorite restaurant sometimes. Ms. Roth and Ms. Tina form a tight bond over the years; she becomes the daughter Ms. Roth always wanted.

As time goes on, Ms. Roth, to show her appreciation, decides to leave most of her estate to Ms. Tina. With Ms. Tina’s assistance, she creates a simple will and leaves it in Ms. Tina’s possession for safe keeping.

A few months later, Ms. Roth passes away. Upon seeing the newly-created will, Ms. Roth’s two sons file a claim against Ms. Tina claiming elder abuse and fraud. The case takes months to resolve and it does not end in Ms. Tina’s favor, thereby thwarting Ms. Roth’s desires regarding her estate.

Under the law, a non-relative caregiver is presumed to be disqualified as a beneficiary because of the great potential for abuse of the relationship. However, there are people who truly want to give their non-relative caregiver some or all of their wealth to reward faithful service or because of a special bond of friendship. To insure that a trust or a will giving an estate to a non-relative caregiver is not overturned by a Court, a document called “Certificate of Independent Review” should be obtained. This is a legal document that has to be prepared by an attorney other than the one who drafted the will or trust. It also has to meet certain requirements of law. Basically, the independent attorney reviews the trust or will, counsels the person about the nature and consequences of the intended transfer, and attempts to determine if the intended consequence is the result of fraud, menace, duress, or undue influence. The attorney then prepares the Certificate based on his or her findings. This document will be very effective in Court to prove that the deceased truly wanted to give all or a portion of his or her wealth to a non-relative caregiver. Had Ms. Tina known the law and followed this relatively simple procedure when the will was drafted, she could have protected herself. © 2013 by Marlene S. Cooper. All rights reserved.

Marlene Cooper Law