Colorado Probate Blog - Wade Ash Woods Hill & Farley, P.C.

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New California Legislation Protecting At-Risk Adults From Predatorial Care Custodians

A dependent adult is defined as an adult of any age who cannot provide properly for his or her basic needs. This includes difficulty managing finances and/or resisting fraud and undue influence by a trusted party.

Unfortunately, many culprits of financial elder abuse are caregivers hired by family members to look after their loved one. Just recently, the California Legislature closed loopholes in the Probate Code that previously allowed caregivers to marry their way into an adult dependent’s wealth.

Prior to Assembly Bill 328 (which was signed by Governor Newsom in June and will go into effect January 1, 2020), California law presumed that any gift given to a “care custodian” was done so as a result of fraud or undue influence. Therefore, opportunistic caregivers would go as far as to marry his or her client to prevent the presumption of invalidity.

Pursuant to AB 328, a surviving spouse is prohibited from receiving a share of the decedent’s estate as described above if:

(1) the spouse was a care custodian of the decedent who was a dependent adult and the marriage commenced while the care custodian provided services to the decedent, or

(2) within 90 days after those services were last provided to the decedent, and the decedent died less than 6 months after the marriage commenced, unless the spouse can prove by clear and convincing evidence that the marriage was not the product of fraud or undue influence.

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