by Justin M. Kennedy
Litherland, Kennedy & Associates, APC, Attorneys at Law
On June 26, 2019, the Governor signed into law AB 328 – this law is meant to protect dependent adults from being taken advantage of by their caregivers.
A dependent adult is defined as a person who is 65 or older and either (1) is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter, or (2) due to one or more deficits in the mental functions the person had difficulty managing his or her own financial resources or resisting fraud or undue influence.
Prior California law had a presumption that if a dependent adult gifted assets during life or upon death through a Trust or Will to their caregiver, that the caregiver had used fraud or undue influence to get said gift.
Separately, California law has a presumption that if someone gets married, the person would want to provide for their spouse. If the person already had a Trust or Will in place and then got married without updating their estate planning documents to reflect the new marriage, the new spouse could claim omitted spouse protections under California law and claim a portion of the total estate.
This then led to caregivers attempting to get around the presumption of fraud or undue influence by marrying the dependent adult and upon the dependent adult’s death, the spouse/caregiver could then make a valid claim against the Trust or estate of the adult dependent.
AB 328 states that the presumption of caregiver fraud or undue influence should apply to a caregiver who marries the dependent adult whom they currently care for or if they marry within 90 days of the last time the caregiver provided care to the dependent adult.
AB 328 further states that lifetime gifts or updates to the Trust or Will of the dependent adult within 6 months after the marriage for the benefit of the spouse/caregiver are also subject to the presumption of fraud or undue influence.
AB 328 is California’s attempt to protect at-risk seniors from potential financial abuse by those tasked with caring for them and closing a loophole that had allowed caregivers to marry a dependent adult with the goal of then inheriting from their estate.