Sunday, April 2, 2023
Article: Toward a New Generation of ‘Caregiver Statutes’
Jamie G. McWilliam recently published an article, Toward a New Generation of ‘Caregiver Statutes’, Elder Law Journal, 2023. Provided below is an abstract to the Article:
Probate law has long seen tension between protecting a testator’s freedom of disposition and protecting them from fraud or undue influence. A handful of states have attempted to strike this balance, at least partially, using “caregiver statutes,” which provide a presumption of undue influence for gifts to caregivers. Most academic critiques of these statutes occurred around the time of their enactment and focused on their restriction on testamentary freedom. However, years—in some cases decades—have passed since their enactment. This paper uses this history to examine the strengths and weaknesses of each caregiver statute. This paper argues that caregiver statutes have proven to be a useful tool for probate practitioners, and shows how, with more nuanced definitions, a new generation of caregiver statutes can cure the weaknesses of their predecessors. In the end, this paper provides a concrete template for this “new generation” of caregiver statutes.