BERNARD v FOLEY 39 Cal4th 794 (2006)

ANGELA ANN BERNARD et al Plaintiffs and Appellants v JAMES FOLEY as

Trustee etc Defendant and Respondent

No S136070

Supreme Court of California

August 21 2006

Appeal from the Superior Court of Los Angeles County NoBP072862 Robert H OBrien Judge[fn]

[fn] Retired judge of the Los Angeles Superior Court assignedby the Chief Justice pursuant to article VI section 6 of theCalifornia ConstitutionPage 795

[EDITORS NOTE THIS PAGE CONTAINS HEADNOTES HEADNOTES ARE NOT ANOFFICIAL PRODUCT OF THE COURT THEREFORE THEY ARE NOT DISPLAYED]Page 796

[EDITORS NOTE THIS PAGE CONTAINS HEADNOTES HEADNOTES ARE NOT ANOFFICIAL PRODUCT OF THE COURT THEREFORE THEY ARE NOT DISPLAYED]Page 797

Robert M Neubauer for Plaintiffs and Appellants

Mark T Eagan and Donna Bader for Defendant and Respondent

OPINION

WERDEGAR J

In this case we determine whether close personal friends of adependent elder who at the end of her life provided her withpersonal care including health care are care custodians forthe purposes of statutory provisions that presumptivelydisqualify care custodians as beneficiaries of testamentarytransfers from dependent adults to whom they provide suchservices (Prob Code sectsect 21350 21351 subd (d) (hereaftersection 21351(d)) Welf amp Inst Code sect 1561017 subd(y))[fn1]

We conclude that when an unrelated person renders substantialongoing health services to a dependent adult that person may bea care custodian for purposes of the statutory scheme at issuenotwithstanding that the service relationship between theindividuals arose out of a preexisting personal friendship ratherthan a professional or occupational connection Accordingly weaffirm the judgment of the Court of AppealPage 798

Background

On August 28 1991 decedent Carmel L Bosco executed theCarmel L Bosco Revocable Living Trust (Trust) Over the yearsdecedent amended the Trust seven times Plaintiffs relatives ofdecedent brought this action seeking to invalidate the seventhand final amendment

Decedent a widow with no children was close to her extendedfamily Plaintiff Angela Ann Bernard is a niece Ann Cassell isdecedents sister Arthur G Erman and Benny Tumminello arenephews and Cathy Lee Miller is a nephews successor ininterest Defendant James Foley is the successor trustee of theTrust Foley and his girlfriend Ann Erman (hereafter Erman)were longtime personal friends of decedent For two months beforeher death decedent resided at the Riverside home shared by Foleyand Erman who jointly cared for her during her final illness

Three days before she died decedent executed the seventhamendment to the Trust pursuant to which Foley and Erman eachbecame a 50 percent residuary beneficiary Neither had been namedas a beneficiary in earlier versions of the Trust

Plaintiffs petitioned the court to invalidate the seventhamendment to the Trust and for a determination of beneficialinterests in the Trust estate They alleged that (1) decedentwas dependent on Foley and Erman inter alia for custodial carefrom approximately July 15 2001 until her death (2) theseventh amendment was the product of undue influence by Foley andErman (3) decedent lacked testamentary capacity when sheexecuted the seventh amendment because she was gravely ill andheavily sedated and (4) Foley and Erman were disqualified toreceive a testamentary transfer from decedent because they hadbeen her care custodians within the meaning of section 21350subdivision (a)(6) and did not fall within any exception to thatstatute

A bench trial was held at which various witnesses testifiedincluding Foley Erman and some of the plaintiffs The partiesdisputed whether Erman or Foley had received payment for theroom board and services they provided to decedent Foley andErman denied they had Foley in his brief to this court assertsthat in any event they certainly were not under a duty to takecare of decedent They were simply performing acts of kindnesson a purely volunteer basis as good friends often do for othersThe trial court noted that Ann Erman had a personal relationshipwith decedent founded on a familial bond[fn2] ruling thatalthough there was some evidence of compensation to Ermanrelating to expenses for decedents care the evidence wasPage 799insufficient to establish a business relationship The trialcourt denied plaintiffs petition concluding neither Erman norFoley were care custodians

The Court of Appeal reversed holding that Foley and Erman werecare custodians of decedent and they had failed to rebut the

statutory presumption that decedents donative transfer to themwas procured by undue influence The Court of Appeal remanded thecause with directions that the trial court enter a new judgmentinvalidating the seventh amendment to the Trust We grantedFoleys petition for review

Discussion

A Statutory Disqualification of Care Custodians

(1) Part 35 of division 11 of the Probate Code (hereafterpart 35) section 21350 et seq sets forth certain limitationson donative transfers by testamentary instrument[fn3]Section 21350 lists seven categories of persons who cannotvalidly be recipients of such donative transfers includinginter alia [a] care custodian of a dependent adult who is thetransferor (id subd (a)(6)) The statute provides that theterm care custodian for these purposes has the meaning as setforth in Section 1561017 of the Welfare and Institutions Code(sect 21350 subd (c))[fn4] That section in turn definescare custodian by means of a list of described agencies andpersons concluding in its finalPage 800subdivision with [a]ny other agency or person providinghealth services or social services to elders or dependentadults[fn5] (Welf amp Inst Code sect 1561017 subd (y))

(2) Section 21351 sets forth several exceptions to section21350 Relevant for our purposes is subdivision (d) of section21351 which provides that the prohibition of section 21350 doesnot apply if [t]he court determines upon clear and convincingevidence but not based solely upon the testimony of any persondescribed in subdivision (a) of Section 21350 [ie anyprohibited transferee] that the transfer was not the product offraud menace duress or undue influence

Once it is determined that a person is prohibited under section21350 from receiving a transfer section 21351 creates arebuttable presumption that the transfer was the product offraud duress menace or undue influence A person who isprohibited from receiving a transfer under section 21350 maystill inherit if [he or she] successfully rebuts the section21351 presumption (sect 21351 subd (d)) In order to rebut thepresumption the transferee must present clear and convincingevidence which does not include his or her own testimony thatthe transfer was not the product of fraud duress menace orundue influence (sect 21351 subd (d)) (Estate of Shinkle(2002) 97 CalApp4th 990 993 [119 CalRptr2d 42])

(3) As we previously have observed this statutory schemesupplements the common law doctrine that a presumption of undueinfluence shifting the burden of proof arises upon thechallengers showing that (1) the person alleged to have exertedundue influence had a confidential relationship with thetestator (2) the person actively participated in procuring theinstruments preparation or execution and (3) the person would

benefit unduly by the testamentary instrument (Rice v Clark(2002) 28 Cal4th 89 97 [120 CalRptr2d 522 47 P3d 300] seealso Graham v Lenzi (1995) 37 CalApp4th 248 257[43 CalRptr2d 407] Estate of Swetmann (2000) 85 CalApp4th 807816-817 [102 CalRptr2d 457] and cases cited therein)Page 801

B Were Foley and Erman Care Custodians

That decedent was a dependent adult is undisputed[fn6] Thequestion is whether Foley and Erman fit the statutory definitionof care custodian

Before the Court of Appeal in this case rendered its decisiontwo other Courts of Appeal had concluded that a person who caresfor a dependent adult out of a preexisting personal friendshiprather than in an occupational or professional capacity does notfall within the definition of care custodian in Welfare andInstitutions Code section 1561017 subdivision (y) and thereforedoes not face disqualification as a beneficiary under ProbateCode section 21350 subdivision (a)(6) (See Conservatorship ofDavidson (2003) 113 CalApp4th 1035 [6 CalRptr3d 702](Davidson) Conservatorship of McDowell (2004)125 CalApp4th 659 [23 CalRptr3d 10] (McDowell))

Davidson concerned the estate of an elderly woman DoloresDavidson who late in life changed her will and trust so as tobenefit a personal friend and neighbor Steve Gungl who hadcared for her during her declining years Four years before herdeath Davidson executed a will and pour-over trust leaving mostof her estate to Gungl thereby revoking her earlier will andtrust that had left most of her estate to her cousin ElaineMorken In the last decade of Davidsons life Gungl and his lifepartner visited Davidson often took her to the doctor andhelped her with household chores As Davidson declined Gungl andhis partner assumed ever greater responsibility for her doingher shopping paying her bills and taking care of her bankingFor her part Davidson treated Gungl and his partner like familycalling them her boys (Davidson supra113 CalApp4th at p 1042)

Morken and her husband who had lived out of state moved atone point to California but had infrequent contact with Davidsonuntil they learned she had executed an estate plan favoringGungl Thereafter they made a series of complaints to adultprotective services the police and Davidsons neighborsUltimately Davidson was placed in a conservatorship under thecharge of the public guardian her house was sold and she wasplaced in a nursing home where she declined and died After herdeath the Morkens sued to invalidatePage 802the trust and will favoring Gungl asserting he was a carecustodian under section 21350 and therefore disqualified toreceive Davidsons donative transfer The trial court found thatwhile Gungl was a not a blood relative of Davidsons his concern

and affection for her had been lasting deep and genuine Rulingthat Gungl was not a care custodian for purposes of section21350 and that Davidson had not been subjected to undueinfluence the court denied the Morkens petition to invalidateDavidsons trust and will (Davidson supra113 CalApp4th at pp 1040-1046)

The Court of Appeal affirmed the trial courts ruling(Davidson supra 113 CalApp4th at pp 1050-1051) The courtopined that the statute bars donative transfers to individualswho have assumed the role of `care custodian to a dependentadult incidental to the professional or occupational provision ofhealth or social services to that dependent adult rather than inconnection with a personal or familial relationship and whosepersonal relationship if any with the dependent adult isentirely incidental secondary to and derived from thepreexisting professional or occupational connection (Id atp 1052) Accordingly the court held when an individualbecomes what is in effect a care custodian of a dependent adultas a direct result of a preexisting genuinely personalrelationship rather than any professional or occupationalconnection with the provision of health or social services thatindividual should not be barred by section 21350 from thebenefit of donative transfers (id at pp 1052-1053)[fn7]

In McDowell supra 125 CalApp4th 659 Kathryn McDowell anelderly woman living alone became friends with two men RezaFatipoor and another whom she asked to live in her home inexchange for taking care of her Two years later in early 2000Fatipoor introduced McDowell to Ann Netcharu McDowell andNetcharu became friends Netcharu frequently visiting McDowelland bringing her food In June 2000 McDowell was hospitalizedfor a broken hip After her discharge Netcharu visited her oftenand regularly brought her meals Netcharu eventually startedtaking care of McDowells personal needs including bathing andhygiene Netcharu did not receive payment for these services

In September 2000 Fatipoor and Netcharu took McDowell to anattorney who prepared a will for her naming Fatipoor andNetcharu executors and sole beneficiaries McDowell told a doctorfriend of the attorney who interviewed her that she was leavingher money to Fatipoor and Netcharu because they were assistingher During these months while McDowellsPage 803physical condition was deteriorating Netcharu tried to getmedical aid for her She also called the public guardian to alerthim to McDowells deteriorating condition and took McDowell tothe doctor

In January 2001 a permanent conservator appointed for McDowellpetitioned for authority to revoke her will and to execute atrust and new will benefiting Guide Dogs for the Blind Theconservator asserted that Fatipoor and Netcharu had used undueinfluence over McDowell to gain control of her assets and thatMcDowell lacked testamentary capacity when she signed the willbenefiting them The trial court rejected these claims

Nevertheless the court ruled that Netcharu was a carecustodian and as such had failed to rebut the presumption ofundue influence arising under section 21350 when a care custodianis named a dependents beneficiary (McDowell supra125 CalApp4th at pp 662-663 667-668)

The Court of Appeal reversed Quoting Davidson the courtobserved that `[t]he controlling question is whether therelationship between the caregiver and the dependent adult aroseout of the provision of health or social services or whetherinstead the provision of care developed naturally from apreexisting genuinely personal relationship (McDowellsupra 125 CalApp4th at p 673) Applying that principle thecourt concluded the evidence did not support the trial courtsfinding that Netcharu was a care custodian She was neither aprofessional nor an occupational caregiver nor was there anyevidence she generally offered care services to the elderly anddependent adult population as a paid or volunteer provider(Ibid) Neither was there evidence that Netcharus relationshipwith McDowell grew out of a preexisting professional oroccupational connection (id at p 673) Rather the courtfound the evidence showed that Netcharu was a well-meaningfriend

As noted the Court of Appeal below declined to followDavidson and McDowell in recognizing a preexisting personalfriendship exception to statutory care custodian status TheCourt of Appeal held to the contrary that the definition ofcare custodian is broad indeed extending to persons providinghealth services or social services to elderly or dependentadults Reviewing the services Foley and Erman had provided todecedent the court noted they were of the sort often rendered bypractical nurses[fn8] The court concluded the evidenceestablished that Foley and Erman came within the statutorydefinitionPage 804

1 Statutory language

(4) In resolving the issue before us we look first to thestatutes words as these `generally provide the most reliableindicator of legislative intent (People v Leal (2004)33 Cal4th 999 1007 [16 CalRptr3d 869 94 P3d 1071]) As notedthe Legislature has provided that the term care custodian forpurposes of Probate Code section 21350 has the meaning set forthin section 1561017 of the Welfare and Institutions Code (sect21350 subd (c)) Our task in interpreting these statutes is toascertain and effectuate legislative intent (People vGardeley (1996) 14 Cal4th 605 621 [59 CalRptr2d 356927 P2d 713])

In its entirety Welfare and Institutions Code section 1561017provides `Care custodian means an administrator or an employeeof any of the following public or private facilities or agenciesor persons providing care or services for elders or dependent

adults including members of the support staff and maintenancestaff [para] (a) Twenty-four-hour health facilities as defined inSections 1250 12502 and 12503 of the Health and Safety Code[para] (b) Clinics [para] (c) Home health agencies [para] (d) Agenciesproviding publicly funded in-home supportive services nutritionservices or other home and community-based support services [para](e) Adult day health care centers and adult day care [para] (f)Secondary schools that serve 18- to 22-year-old dependent adultsand postsecondary educational institutions that serve dependentadults or elders [para] (g) Independent living centers [para] (h)Camps [para] (i) Alzheimers Disease day care resource centers [para](j) Community care facilities as defined in Section 1502 of theHealth and Safety Code and residential care facilities for theelderly as defined in Section 15692 of the Health and SafetyCode [para] (k) Respite care facilities [para] (l) Foster homes [para](m) Vocational rehabilitation facilities and work activitycenters [para] (n) Designated area agencies on aging [para] (o)Regional centers for persons with developmental disabilities [para](p) State Department of Social Services and State Department ofHealth Services licensing divisions [para] (q) County welfaredepartments [para] (r) Offices of patients rights advocates andclients rights advocates including attorneys [para] (s) Theoffice of the long-term care ombudsman [para] (t) Offices of publicconservators public guardians and court investigators [para] (u)Any protection or advocacy agency or entity that is designated bythe Governor to fulfill the requirements and assurances of thefollowing [para] (1) The federal Developmental DisabilitiesAssistance and Bill of Rights Act of 2000 contained inChapter 144 (commencing with Section 15001) of Title 42 of theUnited States Code forPage 805protection and advocacy of the rights of persons withdevelopmental disabilities [para] (2) The Protection and Advocacyfor the Mentally Ill Individuals Act of 1986 as amendedcontained in Chapter 114 (commencing with Section 10801) of Title42 of the United States Code for the protection and advocacy ofthe rights of persons with mental illness [para] (v) Humanesocieties and animal control agencies [para] (w) Fire departments[para] (x) Offices of environmental health and building codeenforcement [para] (y) Any other protective public sectarianmental health or private assistance or advocacy agency or personproviding health services or social services to elders ordependent adults (Italics added)

Thus the statutory definition of care custodian expresslyincludes [a]ny other agency or person providing healthservices or social services to elders or dependent adults(Welf amp Inst Code sect 1561017 subd (y))

Here the uncontroverted evidence shows that Foley and Ermanrendered various services to decedent during the two-month periodshe resided with them including health services Decedent wasincapable of caring for herself so she was dependent on Foleyand Erman for her daily needs Foley did decedents groceryshopping prepared some meals for her and occasionally attendedto her personal needs including helping to change the diapers

she wore Foley also made decedents bed and assisted her withbathing He applied topical medications to decedents bodysometimes with Ermans assistance Additionally Foley wentthrough decedents mail for her and for the last six weeks ofdecedents life handled all her financial and investmentaffairs including her bank accounts

During the same period Erman prepared meals for decedentspent every day with her assisted her in getting to and from thebathroom helped her into bed fixed her hair cleaned herbedroom and did her laundry Erman washed decedents face andhands on days when the visiting hospice nurses were not presentto bathe her She administered oral medications to decedentincluding liquid morphine to assist decedent when she was havingdifficulty breathing dosages of antidepressant drugs anxietymedication and codeine cough syrup She helped decedent applyointments to a rash that had developed in her intimate areasErman also cared for decedents wounds applying salves andantibiotics to sores on her legs and thereafter bandaging thoseareas Devices for monitoring decedents breathing were placed indecedents and Ermans bedrooms so that Erman could monitordecedents breathing

In sum the record reflects that both Foley and Erman providedsubstantial ongoing health services to decedent while at theend of her life she was residing in their home and that it wasduring this period that decedent amended her Trust to include thedonative transfers at issue Foley concedesPage 806he and Erman engaged in activities that could be performed by anurse including the administration of medications andapplication of topical ointments[fn9] Although Foleychallenges the Court of Appeals analysis of the tasks he andErman performed as health services rather than simple tasksthe court correctly noted that Erman administered morphine todecedent and provided wound care calling such services a farcry from the level of care provided by the longtime friends inDavidson where the assistance offered consisted of cookinggardening driving the decedent to the doctor running errandsgrocery shopping purchasing clothing or medications andassisting her with banking (see Davidson supra113 CalApp4th at p 1050)

Foley argues that the Court of Appeal in any event erred infocusing on the kind of services he and Erman provided He urgesus to focus instead on whether they provided services on anoccupational or professional basis in the manner of the publicor private facilities or agencies or persons providing care orservices for elders or dependent adults (Welf amp Inst Code sect1561017) that are listed in subdivisions (a) through (x) of thestatutory care custodian definition These definitionalcategories of care custodian he argues reflect public orprivate facilities or agencies that would come into contact witha dependent adult not as the result of a personal relationship orfriendship but because they are under a duty to provide or haveagreed to provide services to a dependent adult Acknowledging

that the statutory definition ends with a catchall provision thatencompasses [a]ny other agency or person providing healthservices or social services to elders or dependent adults (Welfamp Inst Code sect 1561017 subd (y)) Foley nevertheless suggeststhat provision should be interpreted to include only similaragencies that serve the same purpose as those specifically listedin the preceding subdivisions According to Foley the plainmeaning of Welfare and Institutions Code section 1561017subdivision (y) is to include those persons who fulfill the tasksperformed by the persons and agencies listed in the other 24categories on an occupational or professional basis

(5) In essence Foleys argument is that the language ofWelfare and Institutions Code section 1561017 subdivision (d)must be understood in light of the interpretive canon ejusdemgeneris mdash of the same kind The principle of ejusdemgeneris instructs that `when a statute contains a list orcatalogue of items a court should determine the meaning of eachby reference to the others giving preference to aninterpretation that uniformlyPage 807treats items similar in nature and scope (Kelly v MethodistHospital of So California (2000) 22 Cal4th 1108 1121[95 CalRptr2d 514 997 P2d 1169])

The ejusdem generis canon presumes that if the Legislatureintends a general word to be used in its unrestricted sense itdoes not also offer as examples peculiar things or classes ofthings since those descriptions then would be surplusage(Kraus v Trinity Management Services Inc (2000)23 Cal4th 116 141 [96 CalRptr2d 485 999 P2d 718]) Here even if theentities the Legislature has included in subdivisions (a) through(x) of Welfare and Institutions Code section 1561017 are read asexamples of the public or private facilities agencies or personsto which the Legislature referred in the statutes introductoryparagraph mdash an uncertain premise mdash they manifestly are notpresented as examples of the other protective publicsectarian mental health or private assistance or advocacyagenc[ies] or person[s] (italics added) to which subdivision (y)of the statute refers Rather apparently cast as a broadcatchall provision subdivision (y) offers no examples of eitherpeculiar things or peculiar classes Therefore in accordancewith our established ejusdem generis jurisprudence we mustpresume that the Legislature intends any other personproviding health services in Welfare and Institutions Codesection 1561017 subdivision (y) to be used in its unrestrictedsense

Seeking further to buttress his ejusdem generis argumentFoley points to the requirement in subdivision (y) that theagencies or persons provide dependent adults with health orsocial services (Welf amp Inst Code sect 1561017 subd (y))As longtime personal friends of decedent Foley argues he andErman did not provide health or social services on either a

professional or occupational basis Rather Foley argues aperson who prepares food for or applies ointment to a friendwould not be considered as providing a service within the plainmeaning of the relevant statutes

(6) We disagree with Foley that in ordinary parlance onewho prepares meals for or applies ointments to another persondoes not provide that person a service[fn10] When construingstatutory language we are absent contrary direction bound togive the words the Legislature chose their usual and ordinarymeaning (DaFonte v Up-Right Inc (1992) 2 Cal4th 593 601[7 CalRptr2d 238 828 P2d 140]) While some of the numerousdictionary definitions of the noun service may carry commercialconnotations others do not (See Websters New Internat Dictsupra at p 2288 [listing 30 definitions]) We discern nothingabout the language of Welfare andPage 808Institutions Code section 1561017 mdash and in particular thewording of its subdivision (y) mdash that would justify our presumingthe Legislature intended a specialized or narrow usage ratherthan a general one (See Southern California Edison Co v StateBoard of Equalization (1972) 7 Cal3d 652 662-663[102 CalRptr 766 498 P2d 1014] [finding no statutory indicationthe Legislature intended special meaning of sales price instate use tax statutes]) The single potential linguistic clue isto the contrary In Welfare and Institutions Code section1561017s introductory paragraph the Legislature declares that`[c]are custodian means an administrator or an employee of anyof the following public or private facilities or agencies orpersons providing care or services for elders or dependentadults including members of the support staff and maintenancestaff [of the listed entities] (Italics added) For us toconstrue the statute as excluding uncompensated ornonprofessional care on the ground the word services impliessuch exclusion would fly in the face of the broad introductoryphraseology cast thus in the disjunctive

(7) In light of the statutory language we conclude Foleysclaim that he and Erman did not serve decedents health careneeds must fail We find no professional or occupationallimitation on the definitional statutes pronouncement that carecustodian means among other things any person providing careor health services to a dependent adult (Welf amp Inst Code sect1561017 subd (y))

Finally Foley argues that he and Erman were not custodiansof decedent He cites dictionary definitions of custodian thatconnote a legal or official caretaking function He argues thatbecause they were not legally bound to provide decedent aresidence or care neither he nor Erman can properly beconsidered to have been her custodian

Notwithstanding the cited dictionary definitions of custodiannothing in the statutory language suggests the Legislature whenenacting or amending the statutory scheme understood itself to

be using the word custodian in a sense that presumes acontractual or other legal duty The statutory definition ofcare custodian (Welf amp Inst Code sect 1561017) includes notonly health care institutions but numerous public and privateentities whose employees are in a position to exert undueinfluence on an elderly person facing death In its generalsense a custodian is simply [o]ne who has care or custody (Websters New Internat Dict supra at p 650) adefinition that clearly applies to Foley and Erman In any eventirrespective of Foleys selective dictionary definitions inconstruing the statutory phrase care custodian we are bound tofollow the definition the Legislature has supplied (People vPenny (1955) 44 Cal2d 861 870 [285 P2d 926] People vPociask (1939) 14 Cal2d 679 683 [96 P2d 788])Page 809

(8) In sum we conclude that nothing in the statutesstructure terms or language authorizes us to impose aprofessional or occupational limitation on the definition ofcare custodian (Welf amp Inst Code sect 1561017) or to craft apreexisting personal friendship exception thereto Thisconclusion is buttressed by the legislative history of thestatute to which we now turn

2 Legislative history

The Legislature added part 35 to the Probate Code in 1993 andsubstantially amended it in 1995 (Stats 1993 ch 293 sect 8 p2021 Stats 1995 ch 730 sectsect 12-17 pp 5480-5483) On the onlyprevious occasion we have had to examine this statutory scheme inany depth we observed that [t]he 1993 legislation wasintroduced in response to reports that an Orange County attorneywho represented a large number of Leisure World residents haddrafted numerous wills and trusts under which he was a major orexclusive beneficiary and had abused his position as trustee orconservator in many cases to benefit himself or his lawpartners (Rice v Clark supra 28 Cal4th at pp 97-98(Rice) citing Assem Com on Judiciary Analysis of AssemBill No 21 (1993-1994 Reg Sess) as amended Feb 4 1993 p1) We noted that [t]he scheme set out in part 35 differs fromthe preexisting decisional law relating to undue influence (and sect6104) in several respects Section 21350 applies to all donativetransfers by instrument not only to wills and other testamentarytransfers but it invalidates only gifts to drafters and tofiduciaries (and to persons close to them) who transcribe theinstrument or cause it to be transcribed Unlike the common lawsection 21350 does not require as the predicate for apresumption of invalidity that the transferee would receive an`undue benefit The transferee under part 35 bears anelevated proof burden in rebutting the presumption he or shemust show the absence of undue influence fraud or duress byclear and convincing evidence and without reliance on thetestimony of any presumptively disqualified person (sect 21351subd (d)) (Rice at p 98 italics omitted)

We went on in Rice to discuss certain amendments to the

statutory scheme that were relevant to the issue before us there(see Rice supra 28 Cal4th at p 98) but we have had nooccasion specifically to address the legislative history ofsection 21350s provisions invalidating instrumental transfers tocare custodians and their relatives spouses domestic partnerscohabitants and employees (sect 21350 subd (a)(6) (7))

Other California courts however have recognized that thepurpose of section 21350 was to prevent unscrupulous persons infiduciary relationships from obtaining gifts from elderly personsthrough undue influence or other overbearing behavior (Bank ofAmerica v Angel View Crippled Childrens Foundation (1999)72 CalApp4th 451 456 [85 CalRptr2d 117] accordPage 810Osornio v Weingarten (2004) 124 CalApp4th 304 318-319[21 CalRptr3d 246]) As originally enacted in 1993 section 21350subdivision (a) did not include care custodians of dependentadults among presumptively disqualified donees (See former sect21350 added by Stats 1993 ch 293 sect 8 p 2021) In 1997 theLegislature amended the section to include such care custodians(See Stats 1997 ch 724 sect 33 Osornio at p 319)

In Davidson supra 113 CalApp4th 1035 the court statedthat a legislative committee report indicated that the 1997amendment to section 21350 was intended to apply to gifts made`to practical nurses or other caregivers hired to provide in-homecare (Davidson at p 1050 quoting Sen Com on Judiciarycom on Assem Bill No 1172 (1997-1998 Reg Sess) p 4) Partlyon the basis of that report the Davidson court concluded thatthe legislative intent of the amendment was to place limitationson the ability of professional `care custodians to receivedonative transfers from elderly testators (Davidson at p1051) Construing the term care custodian so as to excludepreexisting personal friends and companions performingself-sacrificing acts of care and companionship the courtopined would be congruent with that intent (Ibid)

Contrary to the Davidson courts statement the portion ofthe committee report it cited addressed not what effect theLegislature intended the 1997 amendment to have but the state ofexisting law at the time the amendment was being considered Therelevant sentence in the report reads in full Existing lawprovides a presumption of invalidity that applies to gifts madeto lawyers or other fiduciaries but not to practical nurses orother caregivers hired to provide in-home care (Sen Com onJudiciary com on Assem Bill No 1172 (1997-1998 Reg Sess) p4)[fn11] The report in the same section noted that thegeneral problem the amendment was intended to address oneobviously not restricted to paid caregivers was that carecustodians are often working alone and in a position to takeadvantage of the person they are caring for (Id at p 4)

(9) In sum neither the statutory scheme presumptivelydisqualifying care custodians from receiving testamentarytransfers nor the definition of care custodian the Legislatureadopted for the purposes of that scheme contains or implies an

exception for preexisting personal friends of a dependent adultto whom they provide health care services Were we moreover tocreate such an exception we would render redundant the expressstatutory exception for the transferors relatives and domesticpartners (See sect 21351 subd (a)) APage 811construction that renders some statutory language surplusage orredundant is to be avoided (Sara M v Superior Court (2005)36 Cal4th 998 1023 [32 CalRptr3d 89 116 P3d 550])

The Legislatures failure to include an express friendshipexception within the statutory scheme is significant because theLegislature knows how to craft such an exception when it wishesto do so The Legislature has expressly promulgated a friendshipexception in another context involving the protection of elderlypersons the Residential Care Facilities for the Elderly Act(Health amp Saf Code sect 1569 et seq) There the Legislatureexcluded from certain licensing requirements [a]ny arrangementfor the care and supervision of a person or persons from only onefamily by a close friend whose friendship preexisted the contactbetween the provider and the recipient and [para] [t]he care and supervision is provided in a home or residencechosen by the recipient [and] [para] [t]he arrangement is notof a business nature and occurs only as long as the needs of therecipient for care and supervision are adequately met (Health ampSaf Code sect 1569145 subd (f)(2))

Even more tellingly the Legislature in section 21351 hasexpressly excepted other specified classes of potentialbeneficiaries from disqualification under section 21350 Section21351 subdivision (a) nullifies application of section 21350 totransferees who are related to the transferor by blood marriageor domestic partnership or who are cohabitants with thetransferor[fn12] As the Court of Appeal below explained hadthe Legislature wished also to exempt preexisting personalfriends from the definition of care custodian it could have doneso It is the role of the courts to interpret and apply the lawsas enacted not to usurp the legislative function

In enacting sections 21350 and 21351 the Legislature wasaware that certain individuals are uniquely positioned to procuregifts from elderly persons through fraud menace duress or undueinfluence (Graham v Lenzi supra 37 CalApp4th at p 256)Regrettably preexisting personal friendship is no guaranteeagainst the exercise of fraud menace duress or undue influenceover dependent adultsPage 812

Our conclusion accords with the overall purpose of section21350 The public policy underlying that statute is expresslyarticulated in Evidence Code section 605 which provides that`[a] presumption affecting the burden of proof is a presumptionestablished to implement some public policy other than tofacilitate the determination of the particular action in whichthe presumption is applied such as the policy in favor of the security of those who entrust themselves or their property to

the administration of others (Graham v Lenzi supra37 CalApp4th at p 257) Nothing in the legislative historysuggests the Legislature harbored a lesser concern for thesecurity of dependent Californians who entrust themselves topersonal friends or acquaintances than it did for those whosecare custodians are paid professionals

Section 21350 (set out in full in fn 4 ante) lists sevencategories of persons who are presumptively barred from receivinga donative transfer from a dependent adult These categoriescover various relationships between donor and donee that mightlogically offer opportunities for duress or undue influence Thestatutory list includes the person who drafted the donativeinstrument (sect 21350 subd (a)(1)) persons with specifiedrelationships to the drafter (id subd (a)(2)-(3)) afiduciary who transcribed the instrument (id subd (a)(4))persons with specified relationships to the fiduciary transcriber(id subd (a)(5)) a care custodian (id subd (a)(6))and persons with specified relationships to the care custodian(id subd (a)(7)) As to all the categories set forth insection 21350 section 21351 expressly exempts cases in which thetransferor is related to the transferee by blood or marriage orin other specified ways (sect 21351 subd (a)) notably it includesno similar exemption for situations where transferor andtransferee otherwise have a preexisting social relationship

Some of the persons described in subsections (1) through (5) ofsection 21350 subdivision (a) might be expected to havepersonal rather than or in addition to professional relationswith the donordependent adult Yet the statute nowhere suggeststhat if they otherwise fall within subsections (1) through (5)the donors preexisting friends neighbors and socialacquaintances are to be excluded from those persons presumptivelybarred from receiving donative transfers from the dependentadult We discern no reason why the Legislature would want toinclude as prohibited donees preexisting friends of the dependentadult who fall within subsections (1) through (5) of section21350 subdivision (a) but under subsection (a)(6) excludepreexisting friends who provide care and service on that basisto the transferor The relationship between dependent adult andcaregiver however it originates is at least as rife withopportunity for duress and undue influence as the otherrelationships described in section 21350Page 813

Welfare and Institutions Code section 1561017 from whichProbate Code section 21350 subdivision (c) imports thedefinition of care custodian is part of the Elder Abuse andDependent Adult Civil Protection Act of 1994 (Elder Abuse Act)(Stats 1994 ch 594 sect 3 pp 2933 2934-2935) The legislativeintent underlying the Elder Abuse Act was to create an expansiveclass of individuals obligated to report elder abuse to theproper authorities (See id sect 1 pp 2932-2933) TheLegislature when defining care custodian for purposes of theElder Abuse Act declared that its intent was very broadspecifically to provide that [proper authorities] shall receive

referrals or complaints from public or private agencies from anymandated reporter submitting reports pursuant to [Welfare andInstitutions Code] Section 15630 or from any other sourcehaving reasonable cause to know that the welfare of an elder ordependent adult is endangered (Id sect 1 subd (i) p2933 italics added) Consonant with that intent the Elder AbuseAct itself as protective legislation provides no exception fromits mandatory reporting provisions even for a victims bloodrelatives let alone for a victims preexisting personal friends(See id sect 3 pp 2934-2935)

(10) In short neither the statutory language nor thelegislative history supports a preexisting personal friendshipexception to section 21350s presumptive disqualification of carecustodian donees It is not for us to gainsay the wisdom of thislegislative choice In the event however we have mistaken theLegislatures intention that body may readily correct our error

3 Public policy

Citing the principle that where uncertainty exists as to themeaning of statutory language consideration should be given tothe consequences that will flow from a particular interpretation(Dyna-Med Inc v Fair Employment amp Housing Com (1987)43 Cal3d 1379 1387 [241 CalRptr 67 743 P2d 1323]) Foleyargues finally that undesirable public policy consequences willfollow our affirming the judgment of the Court of Appeal

First Foley notes it is sometimes infeasible for nurses toadminister health care services to dependent adults whetherbecause needs arise when a nurse is not present or because thefamily is financially unable to secure professional assistancesolely to apply an ointment or bandage or to administermedications to the dependent adult He emphasizes that when heand Erman administered medications and applied ointments todecedent they were proceeding pursuant to the instructions of anurse who attended decedent If the Court of Appeal decision isaffirmed Foley asserts one can envision circumstances where acaregiver instructed by a nurse to apply a topical ointmentrefuses to do so for fear of invalidating a giftPage 814

Second Foley argues that we should exempt preexisting personalfriends from the operation of section 21350 subdivision (a)(6)in order to vindicate the public policy of honoring a decedentstestamentary disposition Absent such an exemption Foley arguesdependent adults may be forced in a difficult period of life toexpend time money and energy arranging for a certificate ofindependent review (see sect 21350 subd (b)) in order to ensuretheir intended transfers are honored

Finally Foley urges the interests of potential beneficiarieswhose prospects may be affected by the statutory scheme Lackinga certificate of independent review a potential beneficiary mayhave difficulty overcoming a section 21350 presumption In orderto do so a care custodian must present clear and convincing

evidence not based solely on his or her own testimony that thetransfer was not the product of fraud duress menace or undueinfluence (sect 21351 subd (d)) And if the court finds thetransfer was the product of fraud menace duress or undueinfluence the disqualified beneficiary must bear all costs ofthe proceeding including reasonable attorney fees (sect 21351(d))The Court of Appeal in Davidson characterized the applicationof these provisions to persons who provide health care servicesout of friendship as effectively punishing individuals forthe self-sacrificing acts of care and companionship they provide to the aging (Davidson supra113 CalApp4th at p 1051)

We acknowledge that application of the statutory scheme toparticular care custodians may in some instances result ininequity But in light of the statutes language and history weneed not strain to discern (because we are not free to impose) auniversally `desirable result in terms of public policy(Samuels v Mix (1999) 22 Cal4th 1 20 [91 CalRptr2d 273989 P2d 701]) Moreover even were we authorized to impose theexceptions Foley proposes we are not persuaded good policy wouldcounsel that we do so Rather unless and until the Legislaturedeclares otherwise we believe the result we reach makespractical sense in a society that is experiencing a rise in elderabuse cases

The statutory scheme neither states nor implies that to qualifyas a care custodian an individual must receive compensation (SeeEstate of Shinkle supra 97 CalApp4th at p 1006 [volunteerombudsman was care custodian]) Concern about fairness tovolunteer health care providers is ultimately unfounded becausesection 21351 provides a clear pathway to avoiding section 21350Section 21351 subdivision (b) renders section 21350 inapplicableif the donative instrument is reviewed by an independentattorney who (1) counsels the client (transferor) about thenature and consequences of the intended transfer (2) attempts todetermine if the intended consequence is the result of fraudmenace duress or undue influence and (3) signs and deliversPage 815to the transferor [a] `CERTIFICATE OF INDEPENDENT REVIEWin which counsel asserts the transfer is valid because it is notthe product of fraud menace duress or undue influence

Finally we find Foleys specter of caregivers refusing toperform services for fear of losing a testamentary giftunpersuasive Any caregiver who would for that reason aloneabstain from helping an elderly friend would by hypothesis be acaregiver with designs on being included in the elders futureestate plan mdash precisely the situation the statutory scheme wasmeant to address (See Osornio v Weingarten supra124 CalApp4th at pp 318-319 Bank of America v Angel ViewCrippled Childrens Foundation supra72 CalApp4th at p 456)

This we emphasize is not a case where preexisting friends whowere testamentary beneficiaries of a testator subsequently became

care custodians Foley and Erman became beneficiaries of theTrust only pursuant to changes decedent made in her will whileshe was living with them and they were providing her with careservices Section 21351(d)s rebuttable presumption is not a banon care custodians receiving gifts it is simply a protectionagainst their seeking or obtaining gifts by fraud menace duressor undue influence Care custodians who can meet the proofrequirements the Legislature has prescribed in section 21351(d)will remain eligible to receive donative transfers[fn13] Andin providing for a certificate of independent review (sect 21351subd (b)) the Legislature has provided transferors who sodesire with a ready mechanism for making donative transfers tocare custodians

C Undue Influence

Independently examining the record the Court of Appealconcluded that Foley had failed to adduce substantial evidence torebut the statutory presumption that decedents transfers to himand Erman were the product of undue influence (See sect 21351(d))The petition for review raised no question concerning thisconclusion and the parties briefs on the merits do not addressitPage 816

Disposition

For the foregoing reasons the judgment of the Court of Appealis affirmed[fn14]

George CJ Baxter J and Chin J concurred

[fn1] Unlabeled section references are to the Probate Code

[fn2] Ann Erman formerly was married to decedents nephewplaintiff Arthur Erman

[fn3] `Instrument means a will trust deed or other writingthat designates a beneficiary or makes a donative transfer ofproperty (sect 45)

[fn4] In its entirety section 21350 provides that (a) Exceptas provided in Section 21351 no provision or provisions of anyinstrument shall be valid to make any donative transfer to any ofthe following [para] (1) The person who drafted the instrument [para](2) A person who is related by blood or marriage to is adomestic partner of is a cohabitant with or is an employee ofthe person who drafted the instrument [para] (3) Any partner orshareholder of any law partnership or law corporation in whichthe person described in paragraph (1) has an ownership interestand any employee of that law partnership or law corporation [para](4) Any person who has a fiduciary relationship with thetransferor including but not limited to a conservator ortrustee who transcribes the instrument or causes it to betranscribed [para] (5) A person who is related by blood or marriageto is a domestic partner of is a cohabitant with or is an

employee of a person who is described in paragraph (4) [para] (6) Acare custodian of a dependent adult who is the transferor [para](7) A person who is related by blood or marriage to is adomestic partner of is a cohabitant with or is an employee ofa person who is described in paragraph (6)

(b) For purposes of this section `a person who is related byblood or marriage to a person means all of the following [para](1) The persons spouse or predeceased spouse [para] (2) Relativeswithin the third degree of the person and of the persons spouse[para] (3) The spouse of any person described in paragraph (2) [para]In determining any relationship under this subdivision Sections6406 [Relatives of Halfblood] 6407 [Unborn Relatives ofDecedent] and Chapter 2 [Parent and Child Relationship](commencing with Section 6450) of Part 2 of Division 6 shall beapplicable

(c) For purposes of this section the term `dependent adulthas the meaning as set forth in Section 1561023 of the Welfareand Institutions Code and also includes those persons who (1) areolder than age 64 and (2) would be dependent adults within themeaning of Section 1561023 if they were between the ages of 18and 64 The term `care custodian has the meaning as set forth inSection 1561017 of the Welfare and Institutions Code

(d) For purposes of this section `domestic partner means adomestic partner as defined under Section 297 of the FamilyCode

[fn5] Welfare and Institutions Code section 1561017 is quoted inits entirety at pages 804-805 post

[fn6] For purposes of Probate Code section 21350 the term`dependent adult has the meaning as set forth in Section1561023 of the Welfare and Institutions Code and also includesthose persons who (1) are older than age 64 and (2) would bedependent adults within the meaning of Section 1561023 if theywere between the ages of 18 and 64 (sect 21350 subd (c))Welfare and Institutions Code section 1561023 provides inrelevant part that `[d]ependent adult means any person betweenthe ages of 18 and 64 years who resides in this state and who hasphysical or mental limitations that restrict his or her abilityto carry out normal activities or to protect his or her rightsincluding but not limited to persons who have physical ordevelopmental disabilities or whose physical or mental abilitieshave diminished because of age (Id subd (a))

[fn7] The Davidson court relied alternatively on the kind ofunsophisticated care and attention that Gungl had provided toDavidson mdash errands chores and household tasks that simplycannot be equated with the provision of `health services andsocial services specified by the subject statutes asconstituting custodial care (Davidson supra113 CalApp4th at p 1050)

[fn8] According to the United States Department of Labor Bureauof Labor Statistics Occupational Outlook Handbook the tasks thatlicensed practical nurses perform include inter alia basicbedside care taking vital signs such as temperature bloodpressure pulse and respiration They also prepare and giveinjections and enemas monitor catheters apply dressings treatbedsores and give alcohol rubs and massages LPNs monitor theirpatients and report adverse reactions to medications ortreatments They collect samples for testing perform routinelaboratory tests feed patients and record food and fluid intakeand output To help keep patients comfortable LPNs assist withbathing dressing and personal hygiene In States where the lawallows they may administer prescribed medicines or startintravenous fluids (US Dept Lab Bur Lab StatisticsOccupational Outlook Handbook Bull No 2600 p 1 availableonline at lthttpwwwblsgovocoprintocos102htmgt [as ofAug 21 2006])

[fn9] As the Court of Appeal noted notwithstanding Erman was theprimary caregiver Foley conceded he and Erman jointly cared fordecedent thus Foley qualifies equally as a care custodian Foleywould in any event be disqualified under section 21350subdivision (a)(7) which disqualifies as a donee a cohabitant ordomestic partner of a care custodian

[fn10] See eg Websters New International Dictionary (2d ed1958) page 2288 (defining service inter alia as[p]erformance of labor for the benefit of another and [t]hedeed of one who serves)

[fn11] The committee report from which the Davidson courtobtained its extract was the Senate Judiciary Committees reporton an annual omnibus probate law bill containing numerous andvaried provisions making both technical and substantive changes(See Sen Com on Judiciary com on Assem Bill No 1172(1997-1998 Reg Sess) p 1)

[fn12] Probate Code section 21351 subdivision (a) incorporatesthe definition of cohabitant contained in section 13700 of thePenal Code thus `cohabitant means two unrelated adult personsliving together for a substantial period of time resulting insome permanency of relationship Factors that may determinewhether persons are cohabiting include but are not limited to(1) sexual relations between the parties while sharing the sameliving quarters (2) sharing of income or expenses (3) joint useor ownership of property (4) whether the parties hold themselvesout as husband and wife (5) the continuity of the relationshipand (6) the length of the relationship (Pen Code sect 13700subd (b))

[fn13] It bears repeating that the Legislature has exempted fromdisqualification under section 21350 care custodians related byblood or marriage to who cohabit with or are the registereddomestic partners of a dependent adult from whom they receive atestamentary gift (see sect 21351 subd (a)) hence our resolutionof this matter cannot affect such persons

[fn14] Conservatorship of McDowell supra 125 CalApp4th 659Conservatorship of Davidson supra 113 CalApp4th 1035 andEstate of Shinkle supra 97 CalApp4th 990 are disapprovedto the extent they interpreted section 21350 as allowing for apreexisting personal friendship exception

GEORGE CJ Concurring

I wholly agree that Welfare and Institutions Code section1561017 does not include a professional or occupationallimitation on or a preexisting personal friendship exception tothe definition of care custodian provided by the statute (Majopn ante at pp 808-809) That section and the statutoryscheme inclusive of Probate Code sections 21350 subdivision(a)(6) and 21351 subdivision (d) presumptively disqualifyingcare custodians as beneficiaries of testamentary transfers donot contain or imply an exception for preexisting personalfriends of a dependent adult to whom they provide health careservices (Maj opn ante at p 810)

I also observe that the circumstances of the present caseillustrate the Legislatures well-founded concern mdash reflected inits adoption of statutory language sufficiently broad toencompass uncompensated caregivers mdash that individuals acting asunpaid care custodians of a dependent adult and not related tothat adult potentially may exercise undue influence over theircharge as readily as professional or occupational carecustodians[fn1]

At the same time it appears to me that in other fairly commonfactual circumstances involving uncompensated caregiversapplication of these statutory provisions may disserve thelegislative goals implicit in their enactment Accordinglynotwithstanding our customary and proper reticence in encouraginglegislative action in the present context I believe theLegislature would do well to consider modifying or augmenting therelevant provisions in order to more fully protect the interestsof dependent adults and society as a whole by according separatetreatment to longer term care custodians who undertake that roleas a consequence of a personal relationship rather than as anoccupational assignmentPage 817

I

The matter before us presents in the words of plaintiffsattorney at oral argument a classic case of what theLegislature was trying to protect against As explained in themajority opinion relatives of the decedent filed suit toinvalidate the seventh and final amendment to Carmel Boscostrust executed three days prior to her death that for the firsttime made defendants her sole residual beneficiaries As isapparent from evidence received at the trial several amendmentsclosely preceding (and apparently anticipating) the finalamendment to the trust belie the conclusion that Bosco acted

merely out of personal preference Considered in light of thestatutory presumption that we have held applicable touncompensated care custodians who become beneficiaries of atestamentary instrument these amendments (including the finalamendment) together with the other evidence in the record do notconstitute substantial evidence in support of the trial courtsalternative finding mdash premised upon its assumed application ofthe statutory presumption mdash that defendants had rebutted thepresumption

Carmel Bosco died childless on September 28 2001 at 97 yearsof age leaving an estate valued at approximately $448000 Boscohad created the trust in 1991 Apparently to ensure the paymentof expenses associated with the continuing care of Boscosyoungest sister Ann Cassell (one of the plaintiffs herein) asan Alzheimers patient Bosco designated Ann to receive one-thirdof the trust estate Bosco named other relatives as co-equalbeneficiaries of the residual estate and named a successortrustee (succeeding Bosco) and an alternate trustee In the firstthree amendments made between 1991 and early 2001 Bosco nameddifferent successor trustees Erman and Foley longtime personalfriends of Bosco were not mentioned in the original trust or inthe first three amendments

Within several months preceding her death however Boscoamended the trust four times The fourth amendment dated June12 2001 was the final amendment executed in the presence ofBoscos attorney Marc Eagan who drafted the original trust andall seven amendments The fourth amendment for the first timenamed defendant Foley as a successor cotrustee with PatriciaTally (a relative of Boscos who had assisted her with her dailyneeds during the preceding four years) changed Ann Cassellsone-third interest in the estate from an outright distribution toa life estate to be held in the trust and used for Cassellscare in amounts deemed reasonable by the trustees in light ofother available income and resources and provided that of the11 relatives named equal residual beneficiaries Michael Colca(who had become disabled) would receive distributions of hisshare in the trustees absolute discretionPage 818

At the repeated urging of defendant Erman Bosco moved from herown residence in Alhambra on July 26 2001 into a house sharedby Foley and Erman in Riverside Erman and Foley having learnedthat Bosco had lung cancer assumed the administration of Boscosfinancial and investment affairs The fifth trust amendmentdated August 12 2001 for the first time named defendant Foleyas the sole successor trustee declared that Foley was entitledto reimbursement of expenses and a reasonable trustees fee andfurther specified that any third person dealing with thesuccessor trustee shall accept and shall be absolutely entitledto rely upon the successor trustees statement that he or sheis successor in accordance with provisions of the trust BetweenAugust 20 and September 6 2001 Foley listed Boscos Alhambraresidence for sale and sold it for $265000

The sixth amendment to the trust dated September 11 2001

deleted the names of Michael Colca and two other relatives sothat eight relatives remained as beneficiaries of the residualestate The seventh amendment dated September 25 2001 deletedthe name of an additional residual beneficiary and eliminatedentirely Ann Cassells one-third life estate interest in thetrust estate In explanation Foley testified that Bosco had beeninformed that Cassell would be supported by Cassells husbandAlvin although Alvin testified such a conversation did not takeplace For the first time it was provided (in the seventhamendment) that the seven remaining relatives formerlydesignated equal beneficiaries of the residual estate insteadwould receive $25000 each For the first time defendants weredesignated sole residual beneficiaries giving them in view ofthe estates estimated value of $448000 the lions share ofthe estate In drafting the amendment Marc Eagan Boscosattorney did not inform Bosco that Foley and Erman would receivethe majority of the estate

II

The circumstances underlying the present case illustrate theLegislatures wisdom in including within the meaning of thestatutes presumptively disqualifying a care custodian frombecoming a testamentary beneficiary of the dependent adultuncompensated friends or acquaintances who provide substantialongoing health or other services to a dependent adult (ProbCode sectsect 21350 subd (a)(6) 21351 subd (d)) In adopting thebroad definition of a care custodian required to report elderabuse (Welf amp Inst Code sect 1561017) for purposes of definingthose persons and entities subject to the presumption of undueinfluence under the Probate Code the Legislature implicitlyrecognized that an individual acting in a caregiving capacity onbehalf of a dependent adult who requires substantial if nottotal care assumes a role uniquely susceptible of exertingsubstantial influence over the dependent person regardless ofthe formality of the arrangementPage 819

That having being said it is not difficult to imaginecircumstances in which an unrelated individual motivated bylong-standing friendship moral obligation or other personalincentive undertakes without compensation to providesubstantial ongoing health care services on behalf of adependent adult mdash for an extended period In such a case therecipient of those services eventually may decide to recognizethose acts by modifying his or her testamentary disposition ofproperty to include the caregiver as a beneficiary In the eventthe dependent adult modifies the instrument but thereafterexpires prior to obtaining certificated independent reviewpursuant to Probate Code section 21351 subdivision (b) theuncompensated long-term caregiver in that example no less thanthe defendants in the present circumstances would bepresumptively disqualified from receiving that beneficialbequest

In my view it is questionable whether the uncompensated

deleted the names of Michael Colca and two other relatives sothat eight relatives remained as beneficiaries of the residualestate The seventh amendment dated September 25 2001 deletedthe name of an additional residual beneficiary and eliminatedentirely Ann Cassells one-third life estate interest in thetrust estate In explanation Foley testified that Bosco had beeninformed that Cassell would be supported by Cassells husbandAlvin although Alvin testified such a conversation did not takeplace For the first time it was provided (in the seventhamendment) that the seven remaining relatives formerlydesignated equal beneficiaries of the residual estate insteadwould receive $25000 each For the first time defendants weredesignated sole residual beneficiaries giving them in view ofthe estates estimated value of $448000 the lions share ofthe estate In drafting the amendment Marc Eagan Boscosattorney did not inform Bosco that Foley and Erman would receivethe majority of the estate

II

The circumstances underlying the present case illustrate theLegislatures wisdom in including within the meaning of thestatutes presumptively disqualifying a care custodian frombecoming a testamentary beneficiary of the dependent adultuncompensated friends or acquaintances who provide substantialongoing health or other services to a dependent adult (ProbCode sectsect 21350 subd (a)(6) 21351 subd (d)) In adopting thebroad definition of a care custodian required to report elderabuse (Welf amp Inst Code sect 1561017) for purposes of definingthose persons and entities subject to the presumption of undueinfluence under the Probate Code the Legislature implicitlyrecognized that an individual acting in a caregiving capacity onbehalf of a dependent adult who requires substantial if nottotal care assumes a role uniquely susceptible of exertingsubstantial influence over the dependent person regardless ofthe formality of the arrangementPage 819

That having being said it is not difficult to imaginecircumstances in which an unrelated individual motivated bylong-standing friendship moral obligation or other personalincentive undertakes without compensation to providesubstantial ongoing health care services on behalf of adependent adult mdash for an extended period In such a case therecipient of those services eventually may decide to recognizethose acts by modifying his or her testamentary disposition ofproperty to include the caregiver as a beneficiary In the eventthe dependent adult modifies the instrument but thereafterexpires prior to obtaining certificated independent reviewpursuant to Probate Code section 21351 subdivision (b) theuncompensated long-term caregiver in that example no less thanthe defendants in the present circumstances would bepresumptively disqualified from receiving that beneficialbequest

In my view it is questionable whether the uncompensated

individual who in a nonoccupational capacity providessubstantial ongoing health services to a dependent adult for anextended period and eventually is made his or her beneficiaryshould be subject to the identical presumptive disqualificationand burden of proof imposed upon an individual who assumes therole of an unpaid caregiver for a relatively brief periodpreceding the dependent adults favorable modification of atestamentary disposition at a time that is fairly proximate todeath

As a practical matter the justification for presuming anexercise of undue influence is less compelling when an individualhaving a preexisting personal relationship with the dependentadult renders health care and other services over a relativelylengthy period of time First the likelihood is less that apersonal friend gratuitously providing substantial ongoinghealth care services over a lengthy term is motivated by theprospect of obtaining undue economic benefit by coercing atestamentary modification Second an uncompensated butwell-established caregiving relationship affords greateropportunity to the donors relatives and other interested partiesto observe the course of the relationship and to resolve anyconcerns occasioned by the caregivers position of trust andpotential ability to exert undue influence

As a matter of policy it is of doubtful social efficacy toapply the statutory presumption and evidentiary burden to anindividual who in a nonprofessional capacity undertakes theserious responsibilities attending the long-term care of adependent adult To do so is counterintuitive to our sense thatthe uncompensated efforts of such an individual benefiting thedependent adult in question and society in general should berecognized and encouraged

Our most basic judicial task in the case before us consists ofconstruing the statutory enactment in its present form and not incrafting or recommending its modification Manifestly themajority has accomplished the former taskPage 820interpreting Probate Code section 21350 subdivision (a)(6) toapply equally to professional compensated persons andnonprofessional uncompensated persons who act as care custodiansin providing substantial ongoing health services to a dependentadult Although I believe our statutory construction is correctand have no reservation regarding its application in the presentcase applying the statute to those persons who have undertakenthe long-term care of a dependent adult without compensation doesnot appear to take full measure of the importance to theindividual or the benefits to society of such efforts born ofpreexisting personal relationships

Accordingly I would suggest legislative modification of therelevant statutes to exempt or otherwise limit application of thestatutory presumption of undue influence in the case ofuncompensated care custodians who provide long-term health careand other services for dependent adults Such an exemption or

limitation might resemble a standard originally applicable in thefederal taxation of estates Formerly a decedents estate wasrequired to include in the gross estate all gifts made incontemplation of death a description that presumptivelyincluded the value of all gifts made by the decedent within threeyears of his or her death (See 26 USC former sect 2035(a)United States v Hemme (1986) 476 US 558 563[90 LEd2d 538 106 SCt 2071] Wheeler v US (5th Cir 1997)116 F3d 749 760 [the former `contemplation-of-death provision wasreplaced by the rule set forth in 26 USC sect 2035(a) providingthat transfers within three years of death are included in thegross estate] Hutchinson v CIR (7th Cir 1985)765 F2d 665 669 [to forestall litigation seeking to ascertain whether adecedent made a transfer in contemplation of death the TaxReform Act of 1976 converted the statutory presumption into amandatory rule that the value of all gifts made by the decedentwithin three years of death must be included in the grossestate])

In similar fashion for purposes of testamentary transfers thelanguage in Californias statutes conditionally disqualifyingdonative transfers to a care custodian mdash subject to rebuttal ofthe presumption of undue influence (Prob Code sectsect 21350 21351)mdash could be amended to provide that a change in testamentarydisposition made by a dependent adult designating the carecustodian as a beneficiary within one year following thecommencement of a new nonprofessional caregiving relationship orwithin one year preceding the death of the dependent adult willbe subject to the presumption of undue influence In thesituation where the donative transfer to an individual precedeshis or her assumption of responsibilities as a care custodian oris made prior to the time that the donor assumes the status of adependent adult the statutory presumption would not applySimilarly where the donative transfer to a care custodian whoprovides uncompensated health care and other services to thedependent adult is made more than one year followingPage 821the commencement of those caregiving services the statutorypresumption would not apply under such a proposed change

[fn1] To fairly distinguish the present situation fromcircumstances that may well warrant a different legislativeresponse I set forth below additional factual backgroundsupplementing what is provided in the majority opinion

CORRIGAN J Dissenting

I respectfully dissent If the Legislature wanted Welfare andInstitutions Code section 1561017 [fn1] to apply to anyonewho provided care to elderly or dependent adults whetherprofessionally or otherwise they simply would have said so Theimpact and the import of the repeated use of such terms asagency office facility school center departmentetc convey an intention to describe people who provide care or

assistance through some formal relationship rather than on aprivate friendship or familial basis The use of the termperson twice in the course of this lengthy provisiondemonstrates an intent to set out the broadest scope of those whooffer care through the operation of an agency office facilityetc The Legislature included for example support andmaintenance staff teachers advocates lawyers ombudsmen andfirefighters If it had intended to include everybody whotreated an elderly person with kindness it certainly would havebeen easy to do so It painstakingly articulated a largePage 822group but one that is more circumscribed than everyone Readin connection with the preceding subdivisions section 1561017subdivision (y) is fairly interpreted as a catchall designed toinclude those who give care in some formalized or professionalcapacity

The statute does refer to persons who provide care[fn2]However this reference is immediately followed by the phraseincluding members of support staff and maintenance staffIndividuals providing care on a personal basis do not do sothrough support or maintenance staffs Therefore the languagethe Legislature chose clearly expresses an intent to encompassonly those involved in providing services in a professional orformal capacity

The remainder of the statute confirms this conclusion It lists24 categories of care providers all of whom act in aprofessional or formal capacity The term person does notappear again until the 25th category which is [a]ny otherprotective public sectarian mental health or privateassistance or advocacy agency or person providing healthservices or social services to elders or dependent adults (sect1561017 subd (y) italics added) The introductory phrase[a]ny other links this category to the other 24 on the list Inother words the principle of ejusdem generis applies herecontrary to the conclusion reached by the majority (maj opnante at pp 806-807) The principle presumes that if theLegislature intends a general word to be used in its unrestrictedsense it does not also offer as examples special things orclasses of things since those descriptions would then besurplusage (Kraus v Trinity Management Services Inc (2000)23 Cal4th 116 141 [96 CalRptr2d 485 999 P2d 718]) Againif the Legislature had intended the donative transferrestrictions to apply to any person who provides care it wouldsimply have said so rather than list 24 specific categories ofpersons to whom the provision applies

The legislative history supports this reading As made clearby discussion of the legislation in an analysis prepared for theSenate Judiciary Committee the enactment of the amendment adding`care custodians to the list of presumptively invalid recipientsof donative transfers was intended to apply to gifts made `topractical nurses or other caregivers hired to provide in-homecare (Sen Com on Judiciary com on Assem Bill No 1172(1997-1998 Reg Sess) p 4) The original proponent of the

proposal for the amendment was the Estate Planning Trust andProbate Law Section of the State Bar of California in its annualomnibus bill In a document prepared by that section discussingthe proposed amendment the `Purpose of the amendment wasdescribed as `to prevent the growing cottage industry ofpractical nursesPage 823from successfully taking advantage of dementing elders The`Application of the amendment is similarly described `Thiswould remove the incentives for the growing cottageindustry of practical nurses to attempt to take advantage ofdementing elders (Cal State Bar Estate Planning Trust amp ProbLaw Section Legislative Proposal Assem Bill No 1172excerpted from Senate Com on Judiciary legislative bill file)(Conservatorship of Davidson (2003) 113 CalApp4th 10351050-1051 [6 CalRptr3d 702] (Davidson))

The majority opinion discounts the conclusion of Davidsonsupra 113 CalApp4th 1035 Contrary to the Davidson courtsstatement the portion of the committee report it cited addressednot what effect the Legislature intended the 1997 amendment tohave but the state of existing law at the time the amendment wasbeing considered The relevant sentence in the report reads infull `Existing law provides a presumption of invalidity thatapplies to gifts made to lawyers or other fiduciaries but not topractical nurses or other caregivers hired to provide in-homecare (Sen Com on Judiciary com on Assem Bill No 1172(1997-1998 Reg Sess) p 4) (Maj opn ante at p 810)

I am not persuaded Instead it appears that the committee wasobserving that the existing state of the law was unsatisfactoryand that its reach should be extended to practical nurses orother caregivers hired to provide in-home care (Sen Com onJudiciary com on Assem Bill No 1172 (1997-1998 Reg Sess) p4 italics added)

In terms of public policy it seems unwise to penalize GoodSamaritans by making them less eligible to receive the gratitudeof those they help the kinder they have been[fn3] As themajority opinion points out Foley and Erman welcomed thedecedent into their own home and performed a variety ofchallenging personal and distasteful tasks to ease the burdensof her final illness (Maj opn ante at p 805) The lawshould not cast a jaundiced eye on those who provide such care tofamily or friends and there is no reason to believe theLegislature intended such an outcome

Foley and Erman may have performed these acts in order tounduly influence decedent They may also have simply beenbenevolent people willing to help another soul in need and towhom the decedent wanted toPage 824express her natural and well-founded gratitude Resolution ofthis factual question should be left to the trial court Placingthe burden of proof on the challengers rather than on thenonprofessional caregivers would give deference to the expressed

will of the decedent and it would not place those who help theinfirm out of the kindness of their hearts at a disadvantage withregard to those who may have ignored them

The majority opinion observes The Legislatures failure toinclude an express friendship exception within the statutoryscheme is significant because the Legislature knows how to craftsuch an exception when it wishes to do so (Maj opn anteat p 811)

However it is also significant that the Legislature did notamend the statute to clarify its intent after Davidsonsupra 113 CalApp4th 1035 and Conservatorship of McDowell(2004) 125 CalApp4th 659 [23 CalRptr3d 10]

Moreover the majority misplaces the emphasis here This casedoes not require the creation of an exception The statute underconsideration is itself an exception to the general rule thatone may freely dispose of personal assets Thus the statuteshould be interpreted narrowly in terms of the exception itcreates

While it is certainly true that nonprofessionals may takeadvantage of the infirm it is also true that the kind andgenerous may act graciously to ease the suffering of those inneed The motives at play in any given case is the kind offactual question the trial court exists to resolve Absent aclear legislative pronouncement to the contrary we should allowthe court to do so without an artificially imposed presumption

The majority observes Concern about fairness to volunteerhealth care providers is ultimately unfounded because section21351 provides a clear pathway to avoiding section 21350 Section21351 subdivision (b) renders section 21350 inapplicable if thedonative instrument `is reviewed by an independent attorney who(1) counsels the client (transferor) about the nature andconsequences of the intended transfer (2) attempts to determineif the intended consequence is the result of fraud menaceduress or undue influence and (3) signs and delivers to thetransferor [a] CERTIFICATE OF INDEPENDENT REVIEW inwhich counsel asserts the transfer is valid because it is `notthe product of fraud menace duress or undue influence (Majopn ante at pp 814-815)Page 825

Kind people are hard to come by sadly and they may be legallyunsophisticated Further cooking cleaning and tending theinfirm may leave little time to seek the advice of an attorneyIndeed one might wonder about the selflessness of their intentif they did In light of these realities one might legitimatelyquestion whether section 21351 really provides the clearpathway to fairness the majority suggests

Kennard J and Moreno J concurred

[fn1] Welfare and Institutions Code section 1561017 provides

`Care custodian means an administrator or an employee of any ofthe following public or private facilities or agencies orpersons providing care or services for elders or dependentadults including members of the support staff and maintenancestaff [para] (a) Twenty-four-hour health facilities as defined inSections 1250 12502 and 12503 of the Health and Safety Code[para] (b) Clinics [para] (c) Home health agencies [para] (d) Agenciesproviding publicly funded in-home supportive services nutritionservices or other home and community-based support services [para](e) Adult day health care centers and adult day care [para] (f)Secondary schools that serve 18- to 22-year-old dependent adultsand postsecondary educational institutions that serve dependentadults or elders [para] (g) Independent living centers [para] (h)Camps [para] (i) Alzheimers Disease day care resource centers [para](j) Community care facilities as defined in Section 1502 of theHealth and Safety Code and residential care facilities for theelderly as defined in Section 15692 of the Health and SafetyCode [para] (k) Respite care facilities [para] (1) Foster homes [para](m) Vocational rehabilitation facilities and work activitycenters [para] (n) Designated area agencies on aging [para] (o)Regional centers for persons with developmental disabilities [para](p) State Department of Social Services and State Department ofHealth Services licensing divisions [para] (q) County welfaredepartments [para] (r) Offices of patients rights advocates andclients rights advocates including attorneys [para] (s) Theoffice of the long-term care ombudsman [para] (t) Offices of publicconservators public guardians and court investigators [para] (u)Any protection or advocacy agency or entity that is designated bythe Governor to fulfill the requirements and assurances of thefollowing [para] (1) The federal Developmental DisabilitiesAssistance and Bill of Rights Act of 2000 contained inChapter 144 (commencing with Section 15001) of Title 42 of theUnited States Code for protection and advocacy of the rights of personswith developmental disabilities [para] (2) The Protection andAdvocacy for the Mentally Ill Individuals Act of 1986 asamended contained in Chapter 114 (commencing with Section 10801)of Title 42 of the United States Code for the protection andadvocacy of the rights of persons with mental illness [para] (v)Humane societies and animal control agencies [para] (w) Firedepartments [para] (x) Offices of environmental health and buildingcode enforcement [para] (y) Any other protective publicsectarian mental health or private assistance or advocacyagency or person providing health services or social services toelders or dependent adults

All further section references are to the Welfare andInstitutions Code unless otherwise indicated

[fn2] `Care custodian means an administrator or an employee ofany of the following public or private facilities or agencies orpersons providing care or services for elders or dependentadults including members of the support staff and maintenancestaff (sect 1561017)

[fn3] The majority imports the terms substantial and ongoingcare into the statute without supporting citation of statutory

language or legislative history (Maj opn ante at pp 797805-806) This gives rise to an unfortunate irony Those whoprovide only trivial or undependable care may inherit whilethose whose care is substantial and ongoing are not only to bedenied but also assessed costs and attorney fees (Prob Code sect21351 subd (d)) Under this analysis the caring and reliablewould be well advised to suppress their kind impulsesPage 826