Friendship as a pre-existing condition

What happens when the sphere of government gets involved with the very different sphere of personal friendship: sometimes the same laws that aim to protect the weak from being taken advantage of may make it harder to get help from some of those best positioned to offer it.

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.


from “Friendship and the Law,” by Ethan Lieb, associate professor at UC Berkeley, NYTimes.com Freakonomics Blog, 11 August 2008

Originally published at culture-making.com.

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