Gifts to Caretakers: Acts of Gratitude or Disguised Malfeasance? New Statutes May Decide for Us

Although financial elder abuse is most commonly perpetrated by family members, elder abuse by caregivers remains a major problem. In response, legislatures in several states, and most recently, Illinois, have enacted statutes appropriately making it more difficult for unscrupulous caregivers to extract gifts. These statutes create a presumption of fraud or undue influence for such gifts and, of particular note for estate planners, the possibility of liability and professional discipline for attorneys effectuating gifts that run afoul of these statutes.

This article examines the background and purpose of these statutory schemes, explores the applicability of the presumption of fraud or undue influence, discusses how to overcome the presumption, and concludes by providing tips for estate planners and attorneys representing fiduciaries and beneficiaries in jurisdictions with such statutes or which are considering such statutes.