Qualities and Conditions of Care. before the Courts
When confronted with disputes concerning the intersection of car-
ing work and commercial transactions, American courts regularly
adopt the three-part procedure we have seen operating in the courtroom struggle between Gabina Lopez and the Rodriguez family. First, they locate the contested relationship within a larger grid of possible relationships. Second, within that grid they mark the line separating gratuitous provision of care from commercial provision—almost regardless of the care’s content or effectiveness. Third, they search for appropriate matches among media, relations, and caring work. Finally, courts draw conclusions concerning both (a) the propriety of the caring work supplied, and (b) who owes what to whom as a consequence.
Legal disputes over caring characteristically erupt in four rather different situations: wrong care, exploitative care, missing care, and thankless care.
1. In cases of wrong care, at least one party claims that another party gave care that was inappropriate for the relationship.
For example, authorities prosecute a herbalist who sells cures for practicing medicine without a license.
2. In cases of exploitative care, someone claims that someone else derived unfair economic advantages from his or her provision of care. For example, a priest offers counseling to a parishioner who disinherits his children and leaves all his money to the priest’s church.
3. In cases of missing care someone fails to provide care that a recipient had a right to receive. For example, an accident at work caused by employer’s negligence keeps the employee from supplying companionship and personal care to the employee’s spouse.
4. In cases of thankless care, someone provides extensive care but then receives little or no economic reward despite previous promises to the contrary. For example, Gabina Lopez received little more than room and board for three years of housework and child care.
None of these four types of care are legal categories. They are typical complaints that people make, which legal practitioners then translate into their own idiom. In all four situations, what commonly happens is that someone who has no special knowledge of the law comes to a court, judge, or lawyer with a complaint about the economic treatment that he, she, or someone else has received. Legal specialists then translate the complaint into categories afforded by existing legal doctrines. How is that translation accomplished? In general, the doctrines depend partly on the definition of the personal relationship among the parties, on the economic transaction among the parties, on the nature of the care given and the services rendered, and on the classic distinction between gratuitous and commercial care.
Courts typically treat gratuitous care as its own reward, or at least as part of a reward system (for example, that of neighbors) in which the law should not be intervening. Commercial care, in contrast, calls up the market and therefore questions of fair or at least reasonable compensation. Courts often overlay this distinction between gratuitous and commercial care with other dichotomies. The familiar separate spheres division between the worlds of sentiment and of rationality certainly operates in many such disputes. But courts often draw on two other specifically legal distinctions: between confidential and nonconfidential relationships, and between professional and nonprofessional relationships. Black’s Law Dictionary (1999) defines confidential, or fiduciary, relationships thus:
A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships—such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client—require the highest duty of care. Fiduciary relationships usually arise in one of four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer. (640)
Nonconfidential relations, then, include all others. These days, ironically, in this dichotomy even husband-wife relationships typically qualify as nonconfidential. As we have seen repeatedly, courts also distinguish between the obligations and rights of licensed professionals, such as doctors, lawyers, and psychotherapists, and nonprofessionals who sometimes provide very similar services but without a license. In each case, classifying the caring relationship on the confidential or professional side of the boundary places the parties on the site of especially binding rights, privileges, and obligations. The placement thus identifies the portion of the law that will govern the justice of the economic transactions under contestation.
In all these regards, nevertheless, courts frequently reshape the distinctions so that they produce what legal specialists regard as justice. Sometimes these legal distinctions produce ironic consequences. Byrnece Green, a stockbroker, learned about these consequences the hard way (Green v. Comm’r 54 T. C.M. (CCH) 764 (1987)). For nine years, she and Maxwell Richmond had lived as husband and wife, following an earlier ten-month engagement, from which Richmond had “begged to be released. .. explaining that he had a ‘mental problem about marriage,’ ” but assuring her that he would provide for her after his death. Green had relented and “made his life as comfortable as possible,” watching his diet, taking care of him when he was ill, and advising him on business affairs (*3). But when Richmond died in 1971, his will left his estimated $7 million estate to his brother and sister. Green sued the estate for the value of her services to Richmond. A jury awarded her over a million dollars. They endorsed her claim of thankless care. The Supreme Judicial Court of Massachusetts turned down an appeal from the estate, but reduced her compensation to $900,000, payable during 1977 and 1978.
The trouble started because Green did not include these payments in her income tax returns, contending that the payments were gifts in return for her “wifely services,” and therefore not taxable. But the Internal Revenue Service challenged her claims precisely on the grounds that the settlement payment had been allowed as restitution for her earned but unpaid compensation for services.
Green was ordered to pay income tax. If Richmond and Green had actually married, Green would unquestionably have had a right to her share of the estate, rather than a claim for unpaid compensation. Thus, apparently subtle legal distinctions have weighty economic consequences.
To observe this complex legal process in action we return to the class of legal disputes with which this chapter began: claims of undue influence. Such claims most often arise in disputes over bequests and inheritance. The question in general is whether someone who receives advantages from an inheritance earlier unfairly influenced the testator’s judgment by means of coercion or care. Courts become particularly wary when the recipient of benefits has a confidential relationship to the donor. Did a psychotherapist improperly suggest that his patient donate to his clinic? Did a lawyer extract the client’s investment in a business the lawyer controlled? Did a nurse who took care of a dying patient prejudice the patient against his children?
The undue influence doctrine is, however, a slippery legal instrument rather than a simple cookie cutter. It involves courts and lawyers in fine distinctions and difficult moral judgments. It requires, for example, judgments of when care that would be obligatory or at least acceptable for the relationship in question becomes excessive. It looks suspiciously at care given in confidential relationships, despite the presumption that the more powerful persons in such relationships will, indeed, provide professional care to the less powerful. It generally exempts spouses from that suspicion, but not members of cohabiting couples, whether heterosexual or homosexual. To be sure, just such suspicions often arise when an old person marries a young one. The undue influence doctrine requires judgments of whether care given by close kin to the old or ill involved a deliberate effort to discredit the claims of other close kin. The doctrine of undue influence, in short, draws courts into exquisitely complex classifications of relationships, interactions, and intentions (see, for example, Leslie 1996, 1999;Madoff 1997).
The 1945 Supreme Court of Wisconsin case of In re Faulks’ Will illustrates these points extensively (17 N. W.2d 423 (Wis. 1945)). In July 1903, George and Mary Faulks, a childless couple living on a farm near Waupaca, Wisconsin, took in Will Jensen, an eleven-year – old boy from a nearby orphan’s home. Sixteen years later, after Will married Pearl, a longtime neighbor, they both moved into the Faulks’s farm home, while the Faulkses took up residence in Waupaca. The Jensens had one daughter, Lorraine. The Faulkses never legally adopted Will. Yet during all those years they treated him “as a son and he fulfilled the obligations of a good son to his foster parents”:
He assisted them in the conduct of their business affairs, looked after them during their illness, had access to their papers, looked after the repair of their residence, did odd chores for them, and in case of illness saw that they were properly cared for. His wife co-operated with her husband in the care of Will’s foster parents and both were on excellent terms with George and Mary. . . . Mary was very fond of Lorraine, often referred to her as her granddaughter, and when Lorraine graduated from high school in 1941, Mary offered to pay for her attendance at the University of Wisconsin for one year. (425)
In 1934, 72-year-old George died. About the same time, Mary, who was two years younger than her husband, began having serious heart problems as a result of myocarditis. In 1932, the then twenty-eight – year-old Dr. L. G. Patterson had arrived from Ohio to start a medical practice in Waupaca. He began attending Mary in 1937 and three years later became her regular physician. At that time, Mary started loaning thousands of dollars to Dr. Patterson, first to help him out with his home mortgages, then to subsidize a hangar and an airplane. After she gave him $1,100 for the hangar, Dr. Patterson apparently made an oral agreement to provide Mary with lifetime medical care.
Mary’s relationship with Patterson thrived during the early 1940s. The doctor and his wife lived three blocks away from Mary’s home, and the two women often visited each other. On Mother’s Day, May 11, 1941, while she was a patient in the hospital Patterson owned with a partner, the doctor sent her flowers and took her on two airplane rides. That summer, the Pattersons, their four-year-old son, and Mary drove to Yellowstone Park; Mary took care of all expenses. According to one of her old neighbors, their conversations now regularly concerned Patterson: “She was always telling how nice he was, how wonderful a doctor she had.. .. She was smiling all the time she talked about him.” With Alice Faulks, her sister-in-law, Mary was more specific about the doctor’s devotion:
He would come up there every night when he was so tired. He would come to the house to see how she was and she always felt so sorry for him because he was overworked. She said one night she did not feel very well and he said, “Well, you get your things on,” . .. and she said he was there in a few minutes. The way she spoke it was as though he picked her up and carried her out, and she said in a few minutes she was in the hospital and in bed. I said, “I am glad somebody takes care of you, because I can’t.” (430)
Meanwhile, Mary’s relationship with Will and Pearl began to sour. The couple grew increasingly resentful of her favors to Dr. Patterson. In early January 1942, when Will and Pearl visited Mary at Dr. Patterson’s hospital, Mary admonished them for being unpleasant to the doctor. Will retorted, “All he is after is your money.” As he later explained, “I could not feel any different for someone that would take money from an old lady that way. I had heard quite a few people talk about her giving him money. It had become quite a subject of conversation in the community at that time” (42627). The dispute terminated Mary’s contact with Will and Pearl. Indeed, when Mary died in December 1942, the couple did not attend her funeral.
After several earlier testaments that had benefited Will; Pearl; their daughter, Lorraine; George’s sister, Eliza Palmer; and her sister-in-law, Alice Faulks, on January 14, 1942, Mary signed what turned out to be her final will, making Dr. Patterson the main beneficiary. Will Jensen contested the bequest. In May 1944 the County Court for Waupaca County supported his demand to substitute an earlier testament for the later document. That court supported Will’s claim of wrong, exploitative care. The following year, Dr. Patterson appealed. Against Will’s claim of undue influence on the doctor’s part, Patterson’s attorney’s argued that Mary was an independent, resolute soul, of sound mind, who had every right to choose her beneficiaries. The claim of undue influence rested on the allegations that Patterson not only “was disposed to influence her unduly for the purpose of procuring improper favors,” but that he “had the opportunity to exercise such influence and to induce her to make a will in his favor.” That opportunity was ample, since as her physician and her neighbor, the first court determined, “he was called frequently to her home to attend her as well as to attend her while she was in the hospital” (431, 441).
Patterson’s rebuttal on appeal, however, insisted that none of this constituted evidence of undue influence. True, he “called upon her frequently, did little favors for her” (442), and Mary was indeed greatly attached to him. Stressing that the natural gratitude of a seriously ill, elderly patient for the care and attention of a competent physician fell within the bounds of expected doctor-patient relations, the appeals court ruled against the argument that Patterson had deliberately manipulated the relationship with Mary to his own advantage. His care was genuine, it was not excessive, it was not fraudulent, and finally it did not constitute undue influence. Thus, the court confirmed that Patterson had provided neither wrong nor exploitative care, and that to deprive him of the bequest would render his care thankless. If, of course, Faulks and Patterson had been lovers, there is a significant chance that Patterson would have lost his claim (Murthy 1997; Ross 1997). They were not, and he regained the bequest.
As for the long-suffering foster son, the appeals court vigorously rejected Will’s claim of thankless care: that his faithful service and his earlier congenial relationship with the Faulkses entitled him to a substantial share of the estate. Although Will was like a son to the Faulkses, the court continued, in the last analysis he was a foster child, not their biological heir: “Long, pleasant and mutually intimate association is no substitute for blood relationship either in law or in fact” (442). (On the ambiguous legal status of foster children’s household contributions see Draper 1979.)