01:42 PM EST on Wednesday, January 25, 2006

Frank the moderator: TODAY at NOON, our guest will be lawyer Nancy Fisher Chudacoff.
Chudacoff, a partner in the the firm of Hardy Tabor & Chudacoff in Pawtucket, concentrates her practice in the areas of estate planning, estate and trust administration, guardianships, elder law and estate planning for those with disabilities. She is a graduate of the Boston University School of Law.
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Frank the moderator: From an email: I work as an elderly advocate for the Blackstone domestic violence center. As I deal with elderly I find as Mr. Kinch stated that because of the abuser being related and in a lot of cases adult child or grand child the cases are usually dropped. In some places we have what is called a mental health court to expedite cases. If we had a judge that would take the elderly cases to maybe an elderly court with one particular judge to hear these cases or even get signed affidavits while the elder is in good health seems that it might help to solve some of the fear and time that elderly persons deal with in court cases. Is this something that is possible in the state of Rhode Island?
Nancy Fisher Chudacoff: I think that that is something that can be addressed if the idea of self-neglect legislation is revisited. It would make sense to have one judge handling the cases.

Tracy Breton: You serve on the General Assembly's Probate Commission. What's that?
Nancy Fisher Chudacoff: It's a commission that looks at what changes should be made to the probate laws, including guardianship laws. The commission has been in effect for a number of years with changing membership that usually includes probate judges, attorneys who practice in the probate area, legislators, representation from some state agencies and members of the general public. We are constantly looking at the laws to see what areas need improvement to make the probate system work better. One of the things we may be looking at is a change in the guardianship statute, changes in the procedural rules regarding contested probate matters, changes to the probate forms.

Tracy Breton: When should someone make out a will?
Nancy Fisher Chudacoff: As soon as they have property and assets. You have to be over 18 to make a will and over 21 to make out a will that disposes of real estate. If you don't have a will and you die, your assets may end up going to family members who you didn't want to get the assets and it makes the probate process slightly more complicated and slightly more costly. But not having a will doesn't mean that your assets go to the state. It simply means that it goes to family members, in accordance with Rhode island law. If you had no family members at all, your assets would go to the state but that is an extremely rare occurrence. Most people have at least distant cousins, even if they have no surviving spouse or children or nieces or nephews.
I'd also like to point out that a will does not cover assets such as retirement benefits or life insurance if there are designated beneficiaries. For example, if someone's only assets were an IRA and a life insurance policy, that person could designate beneficiaries and wouldn't need a will.

Tracy Breton: Why would someone have a trust rather than a will?
Nancy Fisher Chudacoff: There are 3 reasons to have a trust: One is probate avoidance. Two is management of assets in case of disability. And three is for estate tax savings purposes. If someone has a trust and all of his or her assets are titled in the name of the trust or payable to the trust, no probate proceeding will be necessary upon death which will save time and money and avoid information about the assets and their disposition from becoming a matter of public record. If someone is incapacitated and assets are in a trust or can be put into a trust, the trustee can manage the assets for the incapacitated person. Management of assets can be done by means of a power of attorney for legal and financial matters but banks and brokers are more comfortable dealing with a trustee than with someone acting under a power of attorney. Primarily for married people, a trust can be used to minimize or eliminate estate taxes. Just because you have a trust doesn't mean that you lose control of the assets in the trust. You can be your own trustee. You can choose someone else to be the trustee. You can change the trust or the trustee and you can direct the trustee as to how to distribute your assets so long as you have the capacity to make decisions about your financial matters.

Tracy Breton: While trusts provide a level of privacy for people, can't that also be a bad thing since the Probate Court has no oversight over trustees?
Nancy Fisher Chudacoff: I think in limited cases, it could be a problem. There is a mechanism through the Superior Court to request the trustee to do an accounting and to bring an action against a trustee for breach of trust or misappropriation. However, trustees are not required automatically to file accountings as are guardians in the probate court. There's no oversight over their fees except by the beneficiaries of the trust or someone acting on the behalf of the beneficiaries if they believe there have been over-charges.

Tracy Breton: What are the most common problems you see in your practice involving elder care issues?
Nancy Fisher Chudacoff: Failure to do advance planning. The need for a guardianship can be eliminated in most cases if people have set up powers of attorney for legal and financial matters, health care powers of attorney and when suitable, trusts.

Tracy Breton: What if there isn't someone suitable to act as your agent in a power of attorney?
Nancy Fisher Chudacoff: That's a problem. Someone who had no one to name under a health care power of attorney could do a living will but if someone has no one to name under a power of attorney and does not have sufficient assets to use a professional trustee, a guardianship may be the only alternative if the person becomes unable to handle his or her own assets.

Tracy Breton: I've noticed a vast range of practices in Rhode Island's probate courts. Some judges tape record all proceedings and conduct all hearings like trials in Superior Court. Others conduct probate proceedings more informally and almost like chambers conferences, with no tape recordings and no stenographer. Everything is conducted off the bench or at sidebar so spectators can't hear anything that is going on. Shouldn't there be more accountability here?
Nancy Fisher Chudacoff: It is a problem that we have no uniform rules of practice for the probate courts. However, I believe that the courts are required to tape record proceedings and parties to contested matters can hire stenographers. As far as conducting matters off the bench or at sidebar so that spectators can't hear, I believe the probate judges are doing that because they are often dealing with very personal matters about someone who may be involuntarily the subject of the proceeding.

Tracy Breton: More and more probate judges are sealing probate records in apparent violation of the law. The attorney general's office has launched a legal attack on this. Shouldn't these records be open to public perusal just like any other court record?
Nancy Fisher Chudacoff: I think that the probate courts are dealing with very personal matters and details about someone's private lives that aren't necessarily the business of the public. And so long as the attorneys have access to the records, and public agencies that are charged with protecting peoplehave access, I don't see that the public needs or should have access to these records. Perhaps some of the records should be public but not medical records or those that deal with personal details about someone's private life.

Tracy Breton: Many seniors turn over their assets to family members or friends because they think that by doing so, they can avoid having to pay for costly nursing home care and leave more for their families when they die. Do you think this is wise?
Nancy Fisher Chudacoff: There is a pending change in the federal law that will severely curtail that kind of practice. Most elders, however, have a strong desire to have their hard-won assets passed to family members. Whether it is wise to turn assets over to family members depends on the circumstances. In many cases it is not wise for a number of reasons. In some cases, it may be okay. It's generally better to be able to pay privately for nursing home care for a period of time to get into a nursing home of choice or to get a room of choice. But again, if the pending federal legislation is enacted, many seniors will not be able to get Medicaid to pay for nursing homes if they do turn over assets to family members or friends.

Tracy Breton: You also serve on a guardianship commission. Can you talk a little about what that is?
Nancy Fisher Chudacoff: I've just been asked to be a member of that commission. It's a commission, I believe, formed by the Department of Elderly Affairs. It consists of staff from the Department of Elderly Affairs, including Corinne Russo, the director, who chairs the commission; representatives of other social service agencies, including the volunteer guardian program; physicians; probate judges; and lawyers. It looks at a number of issues, including revising the decision-making assessment tool which must be filed in all guardianship proceedings, dealing with problems of self-neglect, and looking at legislation regarding guardianships. Right now, the director of the Department of Elderly Affairs is interested in starting a pilot program by which social service agencies could serve as guardians when there are no individuals available or suitable to be guardians. However, a change in the guardianship statute is necessary to make such a program possible because under current law, no agency can serve as guardian if it derives financial benefit from providing services to someone. That provision is in the statute to avoid conflicts of interest but I believe that the need for guardians is so great that it makes sense for social service agencies providing services to serve as guardians and that mechanisms are in place or can be put in place to deal with the conflict of interest issue.
In my opinion, it may be a better alternative for a social service agency providing services to someone to serve as guardian rather than an unsuitable family member or friend or an attorney.

Tracy Breton: Are too many elders being placed under guardianship?
Nancy Fisher Chudacoff: I don't think so. It's the controversial cases that come to the public's attention but from my perspective, most guardianships are warranted and necessary.

Tracy Breton: How well is the system working in Rhode Island to protect elders from themselves or others?
Nancy Fisher Chudacoff : I think the system is generally working well. I think we should look at legislative solutions to self-neglect issues that cannot be dealt with under current law. Under current law, the Department of Elderly Affairs cannot provide assistance or get medical help for self-neglecting elders who refuse such help and do not need emergency medical treatment or do not meet the very high standard for commitment to a mental facility set forth in the mental health statute.

Tracy Breton: What needs to be fixed in the area of elder care law in Rhode Island?
Nancy Fisher Chudacoff: Again, to look at the self-neglect issue and how that could be addressed legislatively in a way that would protect the rights of elders.

Frank the moderator: If an elderly relative appoints someone power of attorney, but you as son or daughter do not believe this is the right decision, what can one do? And does this happen?
Nancy Fisher Chudacoff: It does happen sometimes. What you could do is file a petition for guardianship but it will be difficult because in order to have a guardian appointed, the court has to determine that there are no suitable alternatives such as a power of attorney. So you'd probably have to show that the person named was financially exploiting the elder or abusing them in some way.

Tracy Breton: Do you generally see a problem with neighbors or friends exploiting an elder who has no close family members to watch out for him or her?
Nancy Fisher Chudacoff: Certainly there are cases of exploitation. But there are many neighbors and friends who unselfishly spend a considerable amount of time helping elders who have no one else.

Frank the moderator: Thanks to Tracy Breton, Journal reporter, and Nancy Chudacoff, lawyer, for the discussion of elderly afairs and legal matters.
For more question and answers by Breton and Chudacoff, go to the projo.com multimedia presentation:
http://www.projo.com/extra/2006/goldenyears/legal/chudacoff/