In California, certain groups of people, including caregivers, are considered “prohibited transferees” under the California Probate Code. This means that if a caregiver is named as a beneficiary of a Trust or Will, there is a presumption that the Trust or Will was the product of fraud or undue influence.
In addition, if someone does attack or contest the validity of the Trust or Will in court, the caregiver will have the burden of proving that he or she did not use fraud or undue influence to coerce the client into designating him or her as a beneficiary—a difficult standard to meet in most cases.
Furthermore, if the caregiver is unable to prove to the court by clear and convincing evidence that the Trust or Will was not the product of fraud or undue influence, the court may order the caregiver to pay the costs and expenses of the court proceedings, including attorneys’ fees. That means the stakes are high for any caregiver looking to defend their gift under a Trust or Will.
In New Zealand, various Agency & Industry Codes of Conduct expressly forbid private or state-funded Caregivers and / or Community Support Workers from engaging themselves in the personal and financial affairs of their clients.
Trouble is, the Codes aren’t often enforced by the agencies that create them.
Laws, not Codes, is what NZ needs to fortify this gaping familial abuse hole.