MCLE SELF-STUDY ARTICLE BETTER LATE THAN NEVER, BUT NEVER LATE IS BETTER: ANALYZING THE TIMING OF CERTIFICATES OF REVIEW FOR GIFTS TO CARE CUSTODIANS

Written by Jarom B. Phipps, Esq.*

I. INTRODUCTION

Does it matter when an attorney completes the certificate of independent review for a gift to a care custodian in relation to when the dependent adult executes the transfer document? Getting the answer correct is important because a certificate that fails to comply with Probate Code section 21384 makes the donative transfer to the care custodian presumptively invalid.⁰¹ That statute is silent on the certificate’s timing, although its language implies that the attorney is to complete the certificate before the dependent adult executes the transfer document.⁰² Still, it is not uncommon for such certificates to be finished after the dependent adult has already put pen to paper, even if only by a few days. Severe consequences may occur if the timing of the certificate is such that it fails to remove the presumption of undue influence. Not only could the intended gift fail, but the drafting and reviewing attorneys could face professional negligence claims regardless of whether the would-be-beneficiary is able prove that no undue influence occurred.⁰³ Provided below is a statutory analysis of Probate Code section 21384 and procedures that attorneys can implement to keep both clients and malpractice carriers satisfied.

II. OVERVIEW OF PROBATE CODE SECTIONS 21380 AND 21384