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These are adults who are either unable to take care of himself or are susceptible to undue influence – especially anyone over age 65 years old.
On the one hand, the law presumes that gifts by dependent adults either to “disqualified persons” or to their unrelated care custodian – who receives payment for services – are the result of fraud, undue influence or duress, and thus invalid.
On the other hand, the law protects the right of dependent adults to make such gifts that if a certificate of independent review is obtained from an attorney who reviews the matter.
The certificate is the written assurance of the reviewing attorney that the legal instrument used to make the gift – often a will or trust – is not the product of undue influence, fraud or duress forced upon the dependent adult by the beneficiary.
But is a certificate always accepted at face value or can it be still successfully challenged so that the presumption of abuse is restored?
A certificate of independent review is only as reliable and effective as the quality of the underlying review that is conducted by the independent attorney who signed the certificate.
In Estate of Winans (183 Cal App 4th 182) the court confirmed that a certificate does not have to be accepted at face value. Thus a certificate of independent review may be successfully challenged by the unhappy family of the dependent adult.
The court agreed that an evidentiary trial was justified based on the facts and circumstances surrounding the issuance of the certificate.
This certificate was exposed as the product of an inadequate and superficial review by the reviewing attorney who stood to gain by approving the gift.
So what kind of review is needed for the certificate to be respected?
First, the reviewing attorney must be independent of the beneficiary of the gift and may not stand to gain from the outcome. Specifically, the reviewing attorney cannot have any, “legal, business, financial, professional or personal relationship with the beneficiary.”
Each such relationship is an impermissible conflict of interest and raises the possibility that the reviewing attorney is partial towards the beneficiary, and is not independent.
Nor may the attorney have a self interest such as being appointed to act as the executor or successor trustee under the dependent adult’s will or trust in question.
Second, the reviewing attorney should explain to the dependent adult that the gift he or she is making to the disqualified person or care custodian is presumed to be invalid. And, also explain how that presumption may be overcome through the certificate of independent review procedure.
Third, the reviewing attorney should then review the legal document in question with the dependent adult and ensure that the client understands that the gift is irrevocable and understands the consequences.
During their meeting the reviewing attorney should take careful notes which may later become evidence that a thorough and complete discussion regarding all the relevant issues occurred.
Fourth, the reviewing attorney might also inquire of third parties to hear what they have to say regarding the nature of the beneficiary’s relationship with the dependent adult. This means contacting the dependent adult’s family and friends, as relevant.
In sum, a certificate of independent review does not have to be accepted at face value. Whether the certificate works depends on whether or not an independent attorney properly reviewed the matter – for the presence of fraud, undue influence and duress – and properly counseled the dependent adult.
Dennis A. Fordham, attorney (LL.M. tax studies), is a State Bar Certified Specialist in Estate Planning, Probate and Trust Law. His office is at 55 First St., Lakeport, California. Dennis can be reached by e-mail at This email address is being protected from spambots. You need JavaScript enabled to view it. or by phone at 707-263-3235.
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