Q My mom lived to 90 and in her last years of life she had caregivers in her home. She liked them very much and they did a great job. When she passed, my brother and I found that mom had given the caregivers gifts of cash, jewelry and her car. Mom was well off and I don’t intend to try and get the property back, but it just seems wrong. The caregivers were well paid and, well, I am just disappointed. Do most caregivers get (or expect) gifts like this?

A The short answer is absolutely not. In California, it is a general rule that any “donative transfer” by a dependent adult to a caretaker is void. A donative transfer refers to a transfer of property without any payment or consideration — such as an outright gift or leaving a bequest in a will or trust. Further, it is a presumption under the law that gifts to caregivers are a result of undue influence and therefore invalid.

Most licensed and reputable caregiver companies have strict policies against caregivers accepting gifts. As you are experiencing, it understandably raises questions.

It is not uncommon that a deep, personal relationship can develop between a caregiver and their ward. It is also not uncommon that a ward may want to reward an especially loved caregiver by giving them a gift or leaving them something by will or by trust.

Attorneys are often asked to amend estate planning documents to include such a gift. Many attorneys will simply decline to make such a change. If an attorney is convinced that the “ward,” in this case the maker of the will or trust, is of sound mind and the attorney further believes the ward is not being unduly influenced, the attorney must take certain steps to be sure the bequest is not made void by law.

These steps include engaging an independent attorney to review the will or trust changes and counsel the ward about the gifting.

If the independent attorney agrees that the gift is being made freely and without coercion, they may sign off on the changes. It is helpful if a credible witness, such as a son or daughter, attests to the ward’s mental state and independence.

Finally, the attorneys should clearly document the reasons for the gift which can include written statements or affidavits that explain the relationship and the reason for the gift.

Unfortunately, caregivers often do not realize how distasteful it is to accept gifts and, often time, illegal.

When a client of mine died recently, the day after his death a caregiver contacted me and stated that our mutual client had promised her that I would sell his car to her for a certain price. My client was very communicative with me in his last weeks and days and had never spoken with me about such an arrangement. When I asked if she had something in writing about this arrangement, she said she did not. I declined to sell the car to her — at any price.

Even with an independent attorney review and statements by relatives that the ward has capacity and is not being influenced, these kinds of gifts often come under scrutiny after the ward has passed away.

All around, it is just a bad idea, and I am sorry you had this experience. It is generous of you not to pursue the return of the gifts.

Liza Horvath has over 30 years of experience in the estate planning and trust fields and is the president of Monterey Trust Management, a financial and trust Management Company. This is not intended to be legal or tax advice. If you have a question call (831) 646-5262 or email liza@montereytrust.com