Attorneys who draft estate plans must always make sure that they are both fulfilling a client’s true intent and are not committing errors that create liability to third parties. A prime example involves donative gifts to caregivers. Consider the hypothetical case of an elderly woman named Jane who would like to give a substantial monetary gift to her longtime caretaker. Even if an attorney writes up the request, interviews Jane to make sure she really does want to give this gift, and has Jane sign papers finalizing the gift, the gift is presumptively void if the drafter does not obtain a certificate of independent review.
In an article published by California Lawyer, Litigation Attorney Michael Fedalen explains the background and statutes behind this presumption of fraud or undue influence, as well as its unintended consequences. Though the presumption of fraud or undue influence against gifts to caregivers can help prevent seniors and other vulnerable adults from being exploited, it can also backfire against practitioners who aren’t aware of the scope of its effects.