So let’s discuss litigation that we see here regularly in the office, involving the validity of gifts to caregivers under trusts. If I am a caregiver in California, and I receive a gift under the trust of the person that I provide caregiving services to, the law presumes that gift to be the product of my undue influence. Meaning, the law presumes it to be the product of my manipulation, or coercion, or threats. So how do I protect the validity of that gift?
The most common way to do that is through a document provided for under the Probate Code called a Certificate of Independent Review. So let’s switch gears, let’s assume I’m the person now that wants to create the trust, and I want to leave a gift to my caregiver. My estate planning attorney should recommend that I obtain a Certificate of Independent Review from an independent estate planning attorney.
My estate planning attorney will send me to this independent estate planning attorney, who will ask me a series of questions to determine, one, not only that I have the requisite testamentary capacity to create the trust, but also to determine that the gift to my caregiver is not the product of undue influence, but is truly my desire and intent. Once the independent estate planning attorney is satisfied that that’s the case, they’re going to create and executed a document called a Certificate of Independent Review.
Now, my caregiver is going to be able to use that document after my passing, to protect the validity of my gift to them, in the face of any challenges to that gift.