Estate of Shinkle

• Decision Date: 28 March 2002
• Docket Number: No. H022305.,H022305.
• Citation: 119 Cal.Rptr.2d 42,97 Cal.App.4th 990
• Court: California Court of Appeals Court of Appeals
• Parties: ESTATE OF Laverne SHINKLE, Deceased. C.J. Thompson, Petitioner and Appellant, v. Les Lindop, as Acting Public Administrator, etc., et al., Objectors and Respondents.

119 Cal.Rptr.2d 42

97 Cal.App.4th 990

ESTATE OF Laverne SHINKLE, Deceased.

C.J. Thompson, Petitioner and Appellant, v. Les Lindop, as Acting Public Administrator, etc., et al., Objectors and Respondents.

No. H022305.

Court of Appeal, Sixth District.

March 28, 2002.

Stephen S. Picone, Picone & DeFelippis, San Jose, for Petitioner and Appellant: C.J. Thompson.

Ann Miller Ravel, County Counsel, Kathryn J. Zoglin and Tamara Lopez, Deputy County Counsel, for Objector and Respondent: Les Lindop, as Acting Public Administrator, etc., et al.

Charles Allen Triay, Oakland, for Objector and Respondent: Troy Bunning and other heirs.

BAMATTRE-MANOUKIAN, Acting P.J.

C.J. Thompson appeals from a judgment after a court trial in a probate matter in which the court held that a trust instrument from which Thompson had benefited was void pursuant to Probate Code section 21350.¹ Section 21350, subdivision (a)(6) (hereafter section 21350(a)(6)) provides that any instrument that makes a donative transfer to a "care custodian of a dependent adult" is invalid. Thompson was the beneficiary of a trust executed by Laverne Shinkle. Shinkle had resided in a skilled nursing facility for almost three years. During most of that time, Thompson was the long-term-care ombudsman for the facility. The definition of a "care custodian" who is prohibited from receiving a donative transfer under section 21350(a)(6) includes a long-term-care ombudsman.

Thompson claims the trust was valid because he was no longer Shinkle's ombudsman when she signed the trust. Thompson had been transferred to another facility six months before the trust was executed. In addition, Shinkle was discharged from the facility a month and a half before she signed the trust.

We hold that an ombudsman remains a "care custodian" within the contemplation of section 21350(a)(6) even after his or her formal ombudsman relationship with a particular resident has ended, due either to a change in the ombudsman's facility assignment or the fact that the resident has left the facility, when the ombudsman, as a result of his or her fiduciary relationship with the resident, develops a personal relationship with the resident and thereby acquires personal and financial information regarding the resident. This is particularly so when the ombudsman, as in this case, is still certified at the time of the transfer at issue. Thus, the trial court was correct in finding that Thompson was a "care custodian" under section 21350(a)(6).

Upon finding that a person is prohibited from receiving a transfer under section 21350, section 21351 creates a rebuttable presumption that the transfer was the product of fraud, duress, menace, or undue influence. A person who is prohibited from receiving a transfer under section 21350 may still inherit, if the transferor obtains independent review of the donative instrument by an attorney (§ 21351, subd. (b)) or if the transferee successfully rebuts the section 21351 presumption (§ 21351, subd. (d).) In order to rebut the presumption, the transferee must present clear and convincing evidence, which does not include his or her own testimony, that the transfer was not the product of fraud, duress, menace, or undue influence. (§ 21351, subd. (d).) We hold that the trial court's finding that Thompson did not meet his burden of rebutting the presumption is supported by substantial evidence. We will therefore affirm the judgment.

FACTUAL BACKGROUND

Laverne Shinkle was 77 years old in October 1995 when she fell and fractured her right hip. As part of her recovery, she was hospitalized at the extended care facility at South Valley Hospital (South Valley), where she met C.J. Thompson. Thompson, a retired schoolteacher, was assigned to the facility as the volunteer long-term-care ombudsman.

The long-term-care ombudsman program is mandated by state law to investigate claims made by or on behalf of residents of long-term care facilities. In Santa Clara County, the program is administered by Catholic Charities and is staffed largely by volunteers like Thompson. After completing a 36-hour training program and passing an examination, the volunteer ombudsmen are certified by the State of California. Once certified, the ombudsmen are required to complete 12 hours of additional training each year to maintain their certifications. The ombudsmen serve as advocates for the residents in long-term-care facilities, who are predominantly elderly. The ombudsman's primary function is to receive and investigate complaints made by the residents of the facility. Ombudsmen also broker information regarding other social services agencies. Ombudsmen are mandated reporters for elder abuse. In addition, their duties include witnessing durable powers of attorney and documents related to property transfers. The relationship between the ombudsman and the facility residents was described by the director of the long-term ombudsman program in Santa Clara County (program director) as a "confidential relationship ... built on trust and trustworthiness." The ombudsmen are expected to be impartial and objective with facility residents and staff. According to the program director, it is not part of the ombudsman's role to help residents pay bills, do the residents' banking, run personal errands for the residents or help them with estate planning. The ombudsmen are to be friendly toward the residents, but not develop friendships with individual residents. The ombudsman's role does not include writing letters for, reading to or shopping for residents. Such functions, which are referred to as "friendly visiting," are performed by another social services agency. According to the program director, it is inappropriate for an ombudsman to visit a former resident in his or her home after he or she leaves a facility or to accept gifts from a resident.

Thompson completed his ombudsman training in the spring of 1995. He admits that he learned, during his initial training, that it was inappropriate to receive gifts from the residents he served. Thompson was certified in September 1995. He began serving as the ombudsman at South Valley a couple of months before he met Shinkle in November of 1995.

On November 17, 1995, Shinkle advised the staff at South Valley that she needed help in retrieving certain personal effects from her home. No one was available to assist her and she inquired whether Thompson could do it. Thompson did not know how to respond and contacted the program director for advice. She told him that it was not part of an ombudsman's normal responsibilities, but if no one else was available, he could retrieve the items for Shinkle if he had a police escort. Thompson obtained a list of the items Shinkle wanted, which included Shinkle's checkbook and some cash, and obtained the items from her home under police escort.

A few days after this event, Shinkle was transferred from South Valley to the Gilroy Health Care Facility (GHC), a skilled nursing facility. Thompson was also the ombudsman at GHC. Around November 30, 1995, Thompson began helping Shinkle write checks to pay her bills. He would fill out all of the information on the check, except for the signature, then have Shinkle sign the check. Thompson also mailed Shinkle's bills and balanced her checkbook. He took her checkbook home with him on occasion, to check her math. Thompson admitted in deposition that he thought these activities were outside of his role as an ombudsman. However, he thought it was appropriate for him to assist her in this way, as her friend. At trial, he testified that he did not give any thought to whether he was acting outside of his role as an ombudsman when he helped Shinkle pay her bills. In addition to helping Shinkle pay her bills, Thompson cashed and/or deposited checks for her at her bank, assisted her with other banking matters and ran other errands for her. He did not assist any of the other facility residents with writing checks.

In November 1995, Thompson learned that Shinkle had no family, that she was a "private payor" and not a Medi-Cal patient, and that she had over $300,000 in liquid assets. Thompson eventually learned that Shinkle owned a home in Gilroy and a rental property in Morgan Hill.

Initially, the staff at GHC expected that Shinkle would go home after completing her physical therapy. Shinkle was not compliant with her therapy and did not recover from the hip fracture as expected. The social services assistant at GHC opined that Shinkle had gotten used to being around other people at GHC and did not want to return home. Shinkle had tried a home visit in 1996. It proved harder than she expected. She returned to GHC after only three hours at home. Shinkle's home was broken into in 1996 or 1997. After that, she told the social services assistant that she was afraid to go home.

Shinkle remained at GHC from mid-November 1995 until September 11, 1998. Thompson was her ombudsman during most of that time. He visited her every week or two between November 1995 and April 1998. During that time, he continued to assist Shinkle with her bills and her banking. Early in their relationship, Shinkle told Thompson that she wanted to leave her estate to him. At first, he thought her offer was crazy, because she barely knew him. Shinkle told Thompson numerous times throughout their relationship that she wanted to leave him her estate. A year or two into the relationship, Thompson told Shinkle that if she wanted to leave him her estate, she would have to do something to make it happen.

On April 23, 1998, the ombudsman program transferred Thompson to another facility. From that point forward, he was no longer assigned to GHC. As of April 23, 1998, Thompson had no plans to see Shinkle again.

In early June 1998, Shinkle called Thompson and asked him to visit her at GHC. He went and saw her that same day. He claims that he was acting as her friend and not as her ombudsman. When Thompson visited Shinkle in early ...