SLEEPLESS NIGHTS FOR ESTATE PLANNING ATTORNEYS: WHAT TO DO ABOUT THE CARE CUSTODIAN STATUTE

By Neil F. Horton^*

I. INTRODUCTION

Estate planning attorneys should worry about naming non-family members as beneficiaries under their clients’ revocable trusts and wills. A gift to a non-family member may be an invalid gift to a "disqualified person" under Probate Code section 21350. That section invalidates any provision in an instrument making a donative transfer from a "dependent adult" to a "care custodian."¹ The terms "dependent adult" and "care custodian" are so broad as to threaten the validity of most gifts from clients over age 64 to non-family members.

This article will (a) analyze the broad statutory definitions of "dependent adult" and "care custodian," (b) list the exceptions that apply to validate certain gifts from dependent adults to care custodians, (c) examine the exception relating to a certificate of independent review,² (d) look at the meager alternative methods for carrying out the wishes of a client who wants to make a testamentary gift to one who arguably is a care custodian, and (e) mention the prospects for legislative relief.