I respectfully dissent. If the Legislature wanted Welfare and Institutions Code section 15610.171 to apply to anyone who provided care to elderly or dependent adults, whether professionally or otherwise, they simply would have said so. The impact and the import of the repeated use of such terms as “agency,” “office,” “facility,” “school,” “center,” “department,” etc., convey an intention to describe people who provide care or assistance through some formal relationship, rather than on a private friendship or familial basis. The use of the term “person” twice in the course of this lengthy provision demonstrates an intent to set out the broadest scope of those who offer care through the operation of an agency, office, facility, etc. The Legislature included, for example, support and maintenance staff, teachers, advocates, lawyers, ombudsmen, and firefighters. If it had intended to include “everybody who treated an elderly person with kindness,” it certainly would have been easy to do so. It painstakingly articulated a large *822group, but one that is more circumscribed than “everyone.” Read in connection with the preceding subdivisions, section 15610.17, subdivision (y) is fairly interpreted as a catchall designed to include those who give care in some formalized or professional capacity.
The statute does refer to persons who provide care.2 However, this reference is immediately followed by the phrase “including members of support staff and maintenance staff.” Individuals providing care on a personal basis do not do so through support or maintenance staffs. Therefore, the language the Legislature chose clearly expresses an intent to encompass only those involved in providing services in a professional or formal capacity.
The remainder of the statute confirms this conclusion. It lists 24 categories of care providers, all of whom act in a professional or formal capacity. The term person does not appear again until the 25th category, which is “[a]ny other protective, public, sectarian, mental health, or private assistance or advocacy agency or person providing health services or social services to elders or dependent adults.” (§ 15610.17, subd. (y), italics added.) The introductory phrase “[a]ny other” links this category to the other 24 on the list. In other words, the principle of ejusdem generis applies here, contrary to the conclusion reached by the majority (maj. opn., ante, at pp. 806-807). The principle presumes that if the Legislature intends a general word to be used in its unrestricted sense, it does not also offer as examples special things or classes of things since those descriptions would then be surplusage. (Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 141 [96 Cal.Rptr.2d 485, 999 P.2d 718].) Again, if the Legislature had intended the donative transfer restrictions to apply to any person who provides care, it would simply have said so, rather than list 24 specific categories of persons to whom the provision applies.
The legislative history supports this reading. “As made clear by discussion of the legislation in an analysis prepared for the Senate Judiciary Committee, the enactment of the amendment adding ‘care custodians’ to the list of presumptively invalid recipients of donative transfers was intended to apply to gifts made ‘to practical nurses or other caregivers hired to provide in-home care.’ (Sen. Com. on Judiciary, com. on Assem. Bill No. 1172 (1997-1998 Reg. Sess.) p. 4.) The original proponent of the proposal for the amendment was the Estate Planning Trust and Probate Law Section of the State Bar of California in its annual omnibus bill. In a document prepared by that section discussing the proposed amendment, the ‘Purpose’ of the amendment was described as ‘to prevent the growing “cottage industry” of “practical nurses” *823from successfully taking advantage of dementing elders.’ The ‘Application’ of the amendment is similarly described: ‘This would . . . remove the incentives for the growing “cottage industry” of “practical nurses” to attempt to take advantage of dementing elders.’ (Cal. State Bar Estate Planning, Trust & Prob. Law Section, Legislative Proposal, Assem. Bill No. 1172, excerpted from Senate Com. on Judiciary legislative bill file.)” (Conservatorship of Davidson (2003) 113 Cal.App.4th 1035, 1050-1051 [6 Cal.Rptr.3d 702] (Davidson).)
The majority opinion discounts the conclusion of Davidson, supra, 113 Cal.App.4th 1035. “Contrary to the Davidson court’s statement, the portion of the committee report it cited addressed not what eifect the Legislature intended the 1997 amendment to have, but the state of existing law at the time the amendment was being considered. The relevant sentence in the report reads in full: ‘Existing law provides a presumption of invalidity that applies to gifts made to lawyers or other fiduciaries, but not to practical nurses or other caregivers hired to provide in-home care.’ (Sen. Com. on Judiciary, com. on Assem. Bill No. 1172 (1997-1998 Reg. Sess.) p. 4.)” (Maj. opn., ante, at p. 810.)
I am not persuaded. Instead, it appears that the committee was observing that the existing state of the law was unsatisfactory and that its reach should be extended to “practical nurses or other caregivers hired to provide in-home care.” (Sen. Com. on Judiciary, com. on Assem. Bill No. 1172 (1997-1998 Reg. Sess.) p. 4, italics added.)
In terms of public policy, it seems unwise to penalize Good Samaritans by making them less eligible to receive the gratitude of those they help, the kinder they have been.3 As the majority opinion points out, Foley and Erman welcomed the decedent into their own home and performed a variety of challenging, personal, and distasteful tasks to ease the burdens of her final illness. (Maj. opn., ante, at p. 805.) The law should not cast a jaundiced eye on those who provide such care to family or friends, and there is no reason to believe the Legislature intended such an outcome.
Foley and Erman may have performed these acts in order to unduly influence decedent. They may also have simply been benevolent people willing to help another soul in need and to whom the decedent wanted to *824express her natural and well-founded gratitude. Resolution of this factual question should be left to the trial court. Placing the burden of proof on the challengers, rather than on the nonprofessional caregivers, would give deference to the expressed will of the decedent, and it would not place those who help the infirm out of the kindness of their hearts at a disadvantage with regard to those who may have ignored them.
The majority opinion observes, “The Legislature’s failure to include an express friendship exception within the statutory scheme is significant, because the Legislature knows how to craft such an exception when it wishes to do so.” (Maj. opn., ante, at p. 811.)
However, it is also significant that the Legislature did not amend the statute to “clarify” its intent after Davidson, supra, 113 Cal.App.4th 1035, and Conservatorship of McDowell (2004) 125 Cal.App.4th 659 [23 Cal.Rptr.3d 10].
Moreover, the majority misplaces the emphasis here. This case does not require the creation of an exception. The statute under consideration is itself an exception to the general rule that one may freely dispose of personal assets. Thus, the statute should be interpreted narrowly in terms of the exception it creates.
While it is certainly true that nonprofessionals may take advantage of the infirm, it is also true that the kind and generous may act graciously to ease the suffering of those in need. The motives at play in any given case is the kind of factual question the trial court exists to resolve. Absent a clear legislative pronouncement to the contrary, we should allow the court to do so without an artificially imposed presumption.
The majority observes, “Concern about fairness to volunteer health care providers is ultimately unfounded because section 21351 provides a clear pathway to avoiding section 21350. Section 21351, subdivision (b) renders section 21350 inapplicable if the donative instrument ‘is reviewed by an independent attorney who (1) counsels the client (transferor) about the nature and consequences of the intended transfer, (2) attempts to determine if the intended consequence is the result of fraud, menace, duress, or undue influence, and (3) signs and delivers to the transferor ... [a] “CERTIFICATE OF INDEPENDENT REVIEW,” ’ in which counsel asserts the transfer is valid because it is ‘not the product of fraud, menace, duress, or undue influence.’ ” (Maj. opn., ante, at pp. 814-815.)
*825Kind people are hard to come by, sadly, and they may be legally unsophisticated. Further, cooking, cleaning, and tending the infirm may leave little time to seek the advice of an attorney. Indeed, one might wonder about the selflessness of their intent if they did. In light of these realities, one might legitimately question whether section 21351 really provides the “clear pathway” to fairness the majority suggests.
Kennard, J., and Moreno, J., concurred.
Welfare and Institutions Code section 15610.17 provides: “ ‘Care custodian’ means an administrator or an employee of any of the following public or private facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the support staff and maintenance staff: [ft] (a) Twenty-four-hour health facilities, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code, [ft] (b) Clinics, [ft] (c) Home health agencies, [ft] (d) Agencies providing publicly funded in-home supportive services, nutrition services, or other home and community-based support services, [ft] (e) Adult day health care centers and adult day care, [ft] (f) Secondary schools that serve 18- to 22-year-old dependent adults and postsecondary educational institutions that serve dependent adults or elders, [ft] (g) Independent living centers, [ft] (h) Camps, [ft] (i) Alzheimer’s Disease day care resource centers, [ft] (j) Community care facilities, as defined in Section 1502 of the Health and Safety Code, and residential care facilities for the elderly, as defined in Section 1569.2 of the Health and Safety Code, [ft] (k) Respite care facilities, [ft] (1) Foster homes, [ft] (m) Vocational rehabilitation facilities and work activity centers, [ft] (n) Designated area agencies on aging, [ft] (o) Regional centers for persons with developmental disabilities, [ft] (p) State Department of Social Services and State Department of Health Services licensing divisions, [ft] (q) County welfare departments, [ft] (r) Offices of patients’ rights advocates and clients’ rights advocates, including attorneys, [ft] (s) The office of the long-term care ombudsman. [ft] (t) Offices of public conservators, public guardians, and court investigators, [ft] (u) Any protection or advocacy agency or entity that is designated by the Governor to fulfill the requirements and assurances of the following: [ft] (1) The federal Developmental Disabilities Assistance and Bill of Rights Act of 2000, contained in Chapter 144 (commencing with Section 15001) of Title 42 of the United States Code, for protection and advocacy of the rights of persons with developmental disabilities, [ft] (2) The Protection and Advocacy for the Mentally 111 Individuals Act of 1986, as amended, contained in Chapter 114 (commencing with Section 10801) of Title 42 of the United States Code, for the protection and advocacy of the rights of persons with mental illness, [ft] (v) Humane societies and animal control agencies, [ft] (w) Fire departments, [ft] (x) Offices of environmental health and building code enforcement, [ft] (y) Any other protective, public, sectarian, mental health, or private assistance or advocacy agency or person providing health services or social services to elders or dependent adults.”
All further section references are to the Welfare and Institutions Code unless otherwise indicated.
“ ‘Care custodian’ means an administrator or an employee of any of the following public or private facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the support staff and maintenance staff . . . .” (§ 15610.17.)
The majority imports the terms substantial and ongoing care into the statute without supporting citation of statutory language or legislative history. (Maj. opn., ante, at pp. 797, 805-806.) This gives rise to an unfortunate irony. Those who provide only trivial or undependable care may inherit, while those whose care is substantial and ongoing are not only to be denied, but also assessed costs and attorney fees. (Prob. Code, § 21351, subd. (d).) Under this analysis, the caring and reliable would be well advised to suppress their kind impulses.