Lessons from a Caregiver Law Suit

Jackie Bedard
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Attorney, Author, and Founder of Carolina Family Estate Planning

The Rova family have owned a 46-acre homestead on Puget Sound since 1918. A big, beautiful piece of land on the spectacularly beautiful Puget. Land that was somewhat valuable in 1918 - though remote - very valuable today. Very.

Eva lived on the property since she was three years old. She got married, inherited the property, lived on it with her husband and daughter until her death in 2011 just shy of her 95th birthday. Eva's husband and daughter predeceased her, her closest living relatives were some nieces and nephews.

Things Are Going Well

She continued to live on the homestead after her husband died. It looks like she did some planning, though I’m not sure to what extent of it. She did, though, make one thing clear - on paper and verbally to anyone who asked her - Eva Barnes wanted to live out her life on her property. Period.

Eva appears to have had a solid relationship with her nieces and nephews and they dropped in on her often. She also bonded with her mailwoman, someone she saw almost every day. Some combination of the nieces and nephews and the mailwoman teamed up to keep a fairly constant watch over Eva.

Things seemed to be going well.

The Fall

In 2009, Eva fell in her kitchen. She was on the floor for two days before the mailwoman/caretaker found her and called an ambulance.

After that, things got complicated. It appears the family, worried, wanted her to go to a nursing home. The one thing Eva had been adamantly against, seemingly forever.

One thing led to another, the family distanced themselves or were forced away, depending on who’s telling the story, from Eva. The mailwoman became, perhaps by default, primary caretaker – though she continued to work for the Post Office and was married with a family of her own.

Shortly before her death, Eva changed her will and left almost everything to the mailwoman. The family was upset and, of course, sued.

The Verdict

It took five years and several appeals but the Washington Supreme Court finally ruled in favor of the family. They found that the mailwoman had exerted undue influence over Eva in changing the will. 

The individual details of what the mailwoman was accused of doing are non-sensational, but they pile up in a damning way – she cut off email, changed Eva's phone plan without informing the family, was said to have whispered gossip and subtlety running down family members to create family rifts – ‘fanning the flames of family discourse’ was how the court put it.

The mailwoman, naturally, had an entirely different set of facts, most of which revolved around the family not dropping in all that often to help and when they did it was only to try to convince Eva to go to a nursing home. 

It needs to be noted that at least one of the lower courts believed the mailwoman.

Lessons

I first thing I take from all this? I see a total failure of communication among the parties - and, therefore, a failure to properly plan.
The one thing – one thing – everyone on both sides of this agrees on is that Eva was fiercely independent and strong-willed. There was never a chance she was ever going to go to a nursing home, everyone should have realized that.

It appears, though, that there wasn’t much communication, and that probably goes back to when she executed her original will.
Part of the problem here is, I expect, that the family thought of Elder Planning as revolving around assisted living facilities.
That’s wrong – good Elder Planning revolves around living a rich, full life after retirement. 
Eva being home for the rest of her life could have been planned for, it might even have mitigated her accident.  

The second thing I take from it: no one will ever really know if the mailwoman was just trying to be a good soul or was exerting influence over Eva to get control of the property.  Again, even the courts split on the issue.

But, as the caregiver the mailwoman did the one thing a caregiver really must never do, as summed up perfectly by a consultant from an Arizona law firm brought in by the Washington Supreme Court: 

. . . it is natural for people to want to include their caregivers in their wills, however, such gifts are always suspect because of the position of trust and power that the caregiver holds over the senior.

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