Mediation’s role in elder law issues
When adult children disagree on the best course of action regarding ailing parents, disputes dating back to childhood can resurface. Different family members can assume different roles and misunderstandings can develop. Sometimes, one adult child becomes the caretaker and believes the others will never understand how difficult caretaking can be. Others, who might live at a distance, might not recognize changes in their parent that require action.
So long as brothers and sisters can communicate and so long as parents can continue to express their own wishes, plans can be developed. When family members can no longer talk to each other, an outsider in some cases can put things in perspective.
Mediation, long considered to be an alternative to lengthy expensive divorce actions, can also be used in other contexts, notably where there is a dispute among adult children regarding frail, disabled and incapacitated parents. If there is anything that brings out old family conflicts like care for, abuse of, and costs relating to elderly parents, I do not know what it is.
While mediation might not be the first remedy, it might be useful as one additional tool in dealing with this kind of family dispute. Frankly, much of what good elder law attorneys do when dealing with a family could probably be considered family mediation or family counseling whether all family members are present or not.
Where a parent is present and able to act, it is the duty of her or his attorney under the Rules of Professional Conduct to conduct business with the parent under as normal circumstances as possible. This would include the duty of the attorney to preserve confidentiality regarding her or his elderly client.
If the parent choses to deal with one or more family members primarily or exclusively, it is her or his choice. However, a good elder law attorney will try to understand the fam
ily dynamics and ask questions to understand what is happening for the benefit of the client and to assure there is not abuse or overreaching. Sometimes family members honestly do not know what actions may be taken and what actions should not be taken under a power of attorney, for instance.
If a parent and the parent’s spouse are both so incapacitated they cannot act, often elder law attorneys are approached by family members for help. Where everyone agrees to a solution, this is simply a matter of putting together a plan and implementing it. A family agreement in writing can be extremely helpful here to pull together the understandings and, in the appropriate circumstance, to fairly compensate family members for the work they are doing.
Where there is serious disagreement, different roads might be taken. One of these might be, although it does not have to be, mediation and mediation can happen even after court proceedings have been instituted.
Here are some circumstances where mediation might be appropriate and successful and where it might not be.
Mediation is appropriate and often successful in matters where:
• The parties have or have had an ongoing personal relationship and have communication problems.
• The primary barriers to settlement are personal or emotional.
• All parties want creative solutions to deal with the problems.
• There is an incentive to settle because of time or cost of litigation, or
• The parties want a confidential forum to resolve their dispute.
Mediation may not be appropriate, however, when:
• There are allegations of domestic abuse.
• There is substance abuse.
• Emergencies or matters involving extremely hostile or volatile participants.
Opposing family members may be represented by counsel in a mediation. Interested parties should be present. The process is normally confidential and parties are encouraged to speak freely.
The benefit of mediation includes involvement of an unbiased party, the opportunity for the parties to vent regarding their viewpoints, and the opportunity to realistically evaluate the strengths and weaknesses of different positions.
Mediation could be considered even after a petition for guardianship has been filed. The incapacitated person may be able to participate through a “guardian ad litem,” that is an attorney whose purpose is to represent the interests of the party through the proceeding. At its conclusion there should be a written settlement agreement.
While mediation has received its reputation mostly through divorce proceedings, family is just as involved in issues involving incapacitated seniors and mediation can be helpful in the right case.
Janet Colliton, Esq. is a Certified Elder Law Attorney and limits her practice to elder law, retirement and estate planning, Medicaid, Medicare, life care and special needs at 790 East Market St., Suite 250, West Chester, Pa., 19382, 610-436-6674, colliton@ collitonlaw.com. She is a member of the National Academy of Elder Law Attorneys and, with Jeffrey Jones, CSA, cofounder of Life Transition Services LLC, a service for families with long term care needs. Tune in on Wednesdays at 4 p.m. to radio WCHE 1520, “50+ Planning Ahead,” with Janet Colliton, Colliton Elder Law Associates, and Phil McFadden, Home Instead Senior Care.
The benefit of mediation includes involvement of an unbiased party, the opportunity for the parties to vent regarding their viewpoints, and the opportunity to realistically evaluate the strengths and weaknesses of different positions.