Bernard v. Foley

In Bernard v. Foley (2006) 39 Cal.4th 794, the decedent resided with her longtime friends, Foley and Erman, during the two months just prior to her death. (Id. at p. 798.) Three days before her death, the decedent amended her trust to make Foley and Erman each a 50 percent residuary beneficiary of the trust; neither had been named in prior versions of the trust. (Ibid.) During the time the decedent resided with Foley and Erman, she was incapable of caring for herself and was dependent on them for her daily needs. (Id. at p. 805.) Foley did the decedent's grocery shopping, prepared some meals for her, made her bed, helped with bathing, sometimes helped change her diapers, applied topical medications to her body, checked her mail, and handled all her financial and investment matters, including her bank accounts. (Ibid.) Erman spent every day with the decedent, prepared her meals, assisted her to and from the bathroom, helped her into bed, fixed her hair, cleaned her bedroom, did her laundry, administered oral medications, applied ointments to a rash, and applied salves and antibiotics to sores on her legs. (Ibid.) The court concluded: "In sum, the record reflects that both Foley and Erman provided substantial, ongoing health services to decedent while, at the end of her life, she was residing in their home and that it was during this period that decedent amended her Trust to include the donative transfers at issue." (Bernard, supra, 39 Cal.4th at p. 805.) The court characterized their services as " 'a far cry from the level of care provided by the longtime friends in Conservatorship of Davidson (2003) 113 Cal.App.4th 1035.' " (Id. at p. 806.) In Bernard v. Foley, the California Supreme Court declined to create an exception to section 21350 based on a personal relationship between the transferor and transferees. It concluded: "Nothing in the statute's structure, terms or language authorizes us to impose a professional or occupational limitation on the definition of 'care custodian' (Welf. & Inst. Code, 15610.17) or to craft a preexisting personal friendship exception thereto." (39 Cal.4th at p. 809.) The court concluded that neither the statutory scheme presumptively disqualifying care custodians from receiving a testamentary gift nor the definition of "care custodian" "contains or implies an exception for preexisting personal friends of a dependent adult to whom they provide health care services." (Bernard, supra, 39 Cal.4th at p. 810.) It declined to create such an exception where the Legislature had not done so. (Id. at pp. 810-811, citing Health & Saf. Code, 1569.145, subd. (f)(2) excluding care provided by close preexisting friend from licensing requirements of California Residential Care Facilities for the Elderly Act (Health & Saf. Code, 1569 et seq.).) Pointing out that the Legislature had chosen in section 21351, subdivision (a) to exempt transferees related by blood, marriage, domestic partnership or cohabitation from the application of section 21350 (id. at p. 811), it held: "Had the Legislature wished also to exempt preexisting personal friends from the definition of care custodian, it could have done so. 'It is the role of the courts to interpret and apply the laws as enacted, not to usurp the legislative function.'" (Bernard, supra, at p. 811.)