Ethan Leib is an associate professor of law at the University of California’s Hastings College of the Law; an affiliated faculty member at the Kadish Center for Morality, Law & Public Affairs at U.C.-Berkeley’s Boalt Hall; and author of Deliberative Democracy In America. In his paper “Friends as Fiduciaries” and on his blog, Leib asks a provocative question: should the law recognize friendship as it does other relationships? He has agreed to write some guest posts here on the subject; this is the first of three.
The Times has reported that the legal academy is out of touch with the legal profession. Courts don’t cite us law professors and we are hopelessly wrapped up in debates with ourselves that don’t matter to real lawyers.
This would seem to be especially true about my pet project these days: trying to understand the relationship between friendship and the law. I’ve been writing article after article trying to understand how friendship and law interact, how the law regulates our friendships on the sly, and whether the law should be at least trying to promote or protect our friendships when it finds itself in the middle of them. I even have some popular press paying attention: I did an article for Policy Review and helped a reporter at The Boston Globe publicize the work.
But it turns out, even if courts are ignoring this academic frolic for now, some legislators may start paying attention. The California Law Revision Commission has taken notice of my work on friendship and the law in a recent report — and has urged the California Legislature to protect friendships.
Here’s how:
In a recent California Supreme Court case (Bernard vs. Foley), the court decided that friends who care for their elderly or infirm counterparts cannot take gifts or bequests without some special proof that they didn’t unduly influence their friends into making the donation. Perversely, if you take care of your friends when they most need you, you may be disqualifying yourself from accepting their largess.
For a while, lower courts found a way around this awkward burden in the case of “pre-existing” friendships, creating a special exemption from the “custodial care provisions” that the Supreme Court recently interpreted. But the Supreme Court simply thought the pre-existing friendship exemption carved by the lower courts could not be justified by the statutory language.
In my work on friendship and the law, I took the modest position that the lower courts had the right instinct — and that it would be a good thing if friends didn’t have to worry about disqualifying themselves from accepting gifts and bequests merely by trying to care for their infirm counterpart. It is good to see that the Commission, after having read my case, is supportive of the Legislature changing the rules.
There’s a lot to say about why we don’t want the law getting too involved in our friendships. But this is a simple way to help protect friends and encourage the care they can provide for one another — and more cheaply than Medicare, to boot.
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Why is the burden of proof on the caregiver to prove she didn’t unduly influence the donation? So undue influence is assumed in the case of a gift like this?! There must be something I’m missing, because this doesn’t sound like a reasonable position for the law to take.
Does the “undue influence” presumption flow to the standard of conduct/care for negligence purposes?
It seems that a friend would ordinarily get a lowered standard of care commensurate with gratuitous actors, but this statute would seem to suggest that an elevated standard is appropriate. Yuck.
The legal position arises from financial abuse perpetrated on the elderly (or others requiring care) by caregivers. This is unfortunately a very common occurance, though normally committed by a family member and certainly not always with malice. Its a complicated matter of interpersonal relationships, the impact of age and age-related health issues, cognitive imparements, money and the perception of “undue influnce” on the disposition of estates.
The Friend issue becomes especially thorny if the elder or ill person has family and the friend receives gifts or bequests that seem out of place to the family.
Fiduciary law is organized around the principle that fiduciaries must not act in their own self-interest and they must remain fully loyal to their beneficiaries. Part of the rationale stems from the beneficiary’s presumed vulnerability to the fiduciary — and the beneficiary’s inability to monitor opportunism. Accordingly, California passed a “custodial caregiver” statute to protect against the presumed vulnerability of the infirm, who might be unduly influenced into making gifts by custodial caregivers. Just as a decedent’s lawyer would have a special burden to take under a will that s/he drafted, so does California law remain suspicious of caregivers who find themselves as recipient’s of gifts. As I suggest, this is at least one way that we ought not extend the fiduciary principle to friends, who should be able to give gifts to one another freely.
Aristotle distinguished three interpersonal relations called “friendship” (philia):1 friendship of virtue; 2…of pleasure/charm; 3…of utility.
Common to each are
i)desire to be in friend’s company, engage on some cooperative activity (competition presumes cooperation to play the game/ceremony/ritual etc.); thus limits on number of friends–it takes time
ii) care/concern for friend’s welfare;
iii)none are “transitive”–if A is friend of B and B of C, A and C need not be friends.
iv) none are necessarily “requited”
v)all may be compartmentalized–sports friend’s, philosophy friends, poker friends etc. Today we recognize “sex friends”. Law gets involved re “palimony”
vi) all imply relation is a good to the friend–losing a friend is a loss of welfare.
So despite wishing well for friends, reluctance to wish so much that you are not in same league.
1. F of V: intrinsic care b/c admiration of virtues/skills/talents. These presume a rough equality–skiing/tennis/golf friends must be in the same league–or relation shifts to student/teacher.
2. F of pleasure/charm–intrinsic care b/c friend’s company feels good–witty, comforting, sexy etc.–so many variations.
3. F of utility–extrinsic care b/c believed friend will advance one’s welfare/interests. Golf/sex etc. with boss; change jobs never see him again.
Display of friendship is insincere–lacks intrinsic care/concern
Re only relations with some form of friendship for each party A and B yields nine possible combos
A B
1 V V mutual admiration
2 V P eg teacher-beautiful student
3 V U eg skilled employee-employer
4 P V see 2
5 P P adolescent sex–aesthetically based
6 P U investment sex–ala Jane Austin
7 U V see 3
8 U P see
9 U U mutually useful; colleagues,teammates
As mentioned, even 1 and 2 imply some utility–benefit to the friend. Gift giving/receiving does not imply mere friendship of utility. But even “insincere” “friendships” are not thereby evil. Johns pay for insincere sex. They (men) once argued that nursing should be unpaid b/c payment undermines sincere patient care.
Sincerity isn’t everything. Often faking it is a virtue a gift. Applies to elder care too.
I’m not sure this post is really about Friendship and the Law because the issue was whether a class of caregivers would be defined as “custodial caregivers” and have any bequest or gift presumptively invalidated. The Court recommended the Legislature look at the problem and the Chief Justice even recommended, that the law “could be amended to provide that a change in
testamentary disposition made by a dependent adult designating
the care custodian as a beneficiary, within one year following the
commencement of a new nonprofessional caregiving relationship
or within one year preceding the death of the dependent adult, will
be subject to the presumption of undue influence.”
In other words, I see this not as being about friendship but about the lines drawn to protect the infirm and their families from evil.
So many of these situations depend on what the caregiver does to affect the family relationship. The child who keeps in touch faithfully, who finds access denied is far more likely to think the CG is a fraud and thief than one who welcomes family and receives a token.
CG working for pay is appropriate, while working for an inheritance usually is not appropriate.
Been involved in cases where CG is the final friend of the elderly person. Family sometimes is easily as greedy as the “late in life friend” that may be sincere or abusive. Time and efforts count for something.
Tough getting old.
It is partly about friendship and other interpersonal relations too.
The “presumption” of “undue influence” may right. However it can be defeated. Employers, employees, students, teachers, parents, offspring–relations of any sort may morph into sincere friendships of virtue or pleasure. One naturally enjoys benefiting friends.
Strictly speaking un-dutiful influence (eg beyond the scope of a professional) need not be wrongful or harmful.