Attorney Andrew Dosa Explains Potential Estate Planning Problems When CareGivers Are Included

Ray Hrdlicka – Host – Attorneys.Media

Hi, this is Ray Hrdlicka, host of Attorneys.Media In the News. Today we’re gonna talk with Andrew Docia, an estate planning attorney in Tacoma, Washington and Alameda County, California. We’re gonna talk about something that’s been in the news where there’s been significant litigation over many years, and that is, within estate planning, what happens when a caregiver gets part of the estate plan? When the person who’s going to die creates an estate plan and adds the caregiver into the estate plan, how does the rest of the family react? What do they feel? What happens? Is it fair? Is it not fair? So we’re going to have them give some examples here and then talk about whether or not those estate plans, those trusts, stand up to litigation. So Andrew, please, let’s talk about that.

Andrew Dósa – Estate Planning Attorney – Tacoma WA and Oakland, CA

Again, let me start by saying thank you for having me on. I appreciate that you would humor me and listen to my thoughts as I share with you. So let’s jump in. I’ll start with a two-part answer. The first answer is going to be what is California law? And California law is very straightforward. A caregiver cannot receive anything. It is considered under the law to be a completely void provision.

Really?

With one exception, and that is before it can be considered valid, the person who has created that trust and decides to give to the caregiver must hire a second attorney to render an opinion and offer a certificate of independent review. So I’ve been given an opportunity to do that on three or four occasions. I actually will be about 10 now. And in those situations, I went and I interviewed the person who was creating the trust. I’d gotten the clue from the attorney who referred the matter to me. And so I had an idea where the person was, what their estate was, the general parameters, and what their general goal was or their plan, at least as far as a particular caregiver. So I had this extraordinary responsibility.

And so what I do is I review the trust, I review all of the financial records, I review a draft of the trust, I should say, or if there’s any prior estate planning documents. And then I will interview the person creating the trust, the settler. And so I begin usually by walking through the particulars of the person’s financial status, the financial situation. I ask about family. I ask about spouses, former spouses. Is there a spouse that passed? Was there a former spouse divorced? And so on.

And I will say one of my goals is to be basically an amateur psychologist. I want to figure out whether this person has capacity to make a trust and make these provisions. That’s the same thing that the originating attorney has done, but I do it for my own well-being because I need to make sure that I can, completely independently of an opinion of another attorney, conclude that this person, the settler, is making a good decision that they want to make. And actually, by saying good decision, I need to be careful. I’m not going to try and tell them whether I think it’s a good decision, in my opinion. It’s not subjective to me. The answer is if they want to do it and they’re rational and there’s a motivation to do it with an understanding, then that is a good decision, right? The decision you make is a good decision. You don’t have to make the decision that 75% of people make or 95% of people make. It is the decision that you as a conscious sentient being with capacity want to make.

So then there is a provision for the caregiver that’s contemplated and I say, well, why do you want to do this for this caregiver? And I will say the majority of the people that I’ve interviewed had plenty of money. So it wasn’t that their children were being left out. There was going to be a gift of 50,000 or 100,000 or something relatively small. And there’s a $4 million estate and three children, they’re going to split and they’re all going to get approximately 750 or 800,000. And if they don’t get one-third of 50,000, it’s not the end of the world. 17,000 is not enough. It’s not enough for them to probably file a petition action and challenge the legitimacy of the trust.

But to protect the settler, I’m not protecting the caregiver who’s going to get money. I’m protecting the settler from some kind of legal attack later. It ends up being for the benefit of that caregiver. But that’s my role, Ray. So I will try and do an evaluation. And I just have to tell you, I have one trick question at the very beginning. It’s not a trick question. I make the test, I make the settler laugh. If I tell a joke and I’m being my normal funny self and they get the jokes, that’s Ray, my first indication that person is sane. If they get my humor and they get it, really, and I’m chuckling, and you are too. But the answer is if you tell a joke, a joke is what? It’s kind of like reality, but shifted over a little bit. And so that means they’re related to the reality and they recognize that the joke is just poking fun at or playing with or playful or whatever it may be related to reality. And when they laugh at it, I know that they’re oriented to time and space. I don’t need validation for my sense of humor. That’s not my issue. It’s just whether they get it. If they get it, then we’re both in the same place.

Ray Hrdlicka – Host – Attorneys.Media

So, is a time period of employment or assistance to the creator of the estate, does that come into play in your questioning? You know, do you look at a shorter period of time as more suspect?

Andrew Dósa – Estate Planning Attorney – Tacoma WA and Oakland, CA

Right. The answer is yes. It is a warning flag, which is not a warning flag of danger as in it can’t be right. It is a warning flag of just to make sure that the person’s not being overwhelmed in the moment. And so the answer is yes, when people are older and there’s something about the older person’s mind. There’s an adjustment so that there is a little bit less of a narrowing of focus. There’s a little bit less openness, which is not necessarily entirely wrong, but it’s a reality. And when an elderly person is just so grateful that somebody is there and their friend and listening to them, well, the reality, Ray, is that person is not hired to be a friend. That person’s hired to be a caregiver.

So in the situations where I wasn’t sure, again, I can’t say that it’s wrong that they would want to give more to someone who has been their friend for three months in their worst moments. But I’ll then ask, what about your children? And I had, there was one person whose son was across the country and couldn’t come back, come down every weekend. And then I would say, well, do you think your son loves you less? I’d ask those kinds of questions.

And then, I’m not going to say whether I’ve ever changed any settlers’ mind about what they wanted to put in. I just wanted to make sure that the decision that they made was appropriate. I believe that there were times when I’d say, well, perhaps maybe that’s a good number. Maybe that’s not a good number. I’m not going to tell you what I think. I just want to make sure that you’re comfortable with the decision you make. I want to make sure that you believe that it’s the right decision. And then, you know, sometimes an answer might be, well, my son’s taken care of. I say, okay, but would he take it wrong if there was suddenly a substantial drop in the amount that was received, even if he was doing well? Is that the wrong statement? Not about the money, but about your valuing him? And then parents are going, oh, I would never. And I said, well, maybe you send them a message. Maybe you work it out with them having an understanding about where you’re going.

And then I would also say, remember, the person who came in was an employee, and their job is to make you feel comfortable and to help you with your medication. And they’re being hired to do that. They’re not, you’re not employing a friend. You’re employing a caregiver for your health. And if they do a good job, they’re going to be mindful of your mental well-being. And so they’re going to want to encourage you and lift your spirits up.

And so then I don’t, I can get into, they may be manipulating you. I’ve seen that before. And it’s a tough situation. If I’m in that situation, I don’t really feel comfortable about talking them out of the decision. I try and ask the questions to challenge them and provoke them. And I try and figure out what’s the question that will make them go, well, maybe that’s not the right idea. Oh, yeah, that’s right. There is a perspective I ought to have. It’s hard to change people’s minds when they’ve made up their minds and they just see an immediate benefit. And so it’s not all that different from a child that sees candy and wants to have it right now. You see the idea, it makes sense to you, and you don’t go, what, maybe I just don’t need it. I’ve had enough for the new year.

Ray Hrdlicka – Host – Attorneys.Media

As you explain this, there seems to be a significant amount of effort on your part as when you have been hired to do this situation. I can see how, I hate to say this, you know, because we’re all human beings, how there are some other people who would just, you know, blatantly accept whatever is being put in front of them and wouldn’t spend the time asking those questions that you did. And that’s a big challenge then. I can see why California requires this in their attempt to ensure there is not something nefarious going on.

Andrew Dósa – Estate Planning Attorney – Tacoma WA and Oakland, CA

Correct. And we all know and we all have heard stories, whether they’re entirely true in all situations, but the reality is there are situations where there have been caregivers that have taken advantage. I might have heard of caregivers that stole. The majority of caregivers are going to be legitimate and earnest, they wouldn’t be doing a job that’s relatively thankless that they didn’t care about doing it. But there have been caregivers that have done wrong, just as there have been children that have come in and done wrong.

I’ve had litigation where a brother came in and took money from his sister’s estate and then put him in as the beneficiary of some of her benefits from her retirement. And so the two children of the sister wanted to hire me for litigation. The problem was it was just going to be too expensive with not enough money to come up with it. Just how do you prove that? And it’s just really, it’s really saddening for me to hear because it seemed that the stories were compelling. At the same time, that was their perspective and they may not have really truly been harmed. Maybe the sister did want to do it. And then I asked a couple of questions and his answer suggested that his mom intended for them to be the beneficiaries and not her brother, their uncle. So it’s a heart-rending situation and I feel badly that I couldn’t do some help. And there’s a part of me that thinks, wouldn’t it be wonderful that you could cosmically answer the question, ’cause you knew, as if you saw with the insight of God, ’cause you were present. It would be wonderful if we’d have that situation, but this planet doesn’t offer us that opportunity.

Ray Hrdlicka – Host – Attorneys.Media

Well, Andrew, thank you very much for part one of this section here about California. We’ll pick it up in the next segment about Washington and about the caregivers and what happens with caregivers in Washington State. We’ll pick it up in the next segment. Thank you very much for being here. We appreciate it, it’s gonna be an ongoing discussion.

Andrew Dósa – Estate Planning Attorney – Tacoma WA and Oakland, CA

All right, great. Thanks, Ray. I look forward to revisiting the issue with you.

Ray Hrdlicka – Host – Attorneys.Media

Have a great day. Bye. All right, take care.

Andrew Dósa – Estate Planning Attorney – Tacoma WA and Oakland, CA

You too.