Consider Mediation for Elder Disputes
Sometimes families reach a stalemate where a parent’s future and the management of assets is involved. Warring family members can challenge who cares for Mom or where parents should live when they cannot live at home, or whether frail elder parents can stay at home with outside assistance when they are unable to care for themselves. Disputes take many forms. If one child lives with her parent, others might distance themselves and let her handle it all or there can be resentment, misunderstanding, or distrust regarding the person handling the funds even when handled properly, and definitely when not. When questions arise, family meetings can sometimes help. Family agreements drafted by an elder law attorney are another remedy. But, before going to Court, consideration might be given to mediation. There are, in fact, attorneys who are certified as mediators and can act in this capacity.
Mediation, long considered to be an alternative to lengthy expensive divorce actions,, can also be used 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. Childhood grudges can be resurrected with a vengeance.
While mediation might not be the first remedy, it can be useful as one additional tool. Frankly, much of what good elder law attorneys do when dealing with a family could probably be considered family mediation or family counseling anyway but formal mediation takes it one step further.
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 also 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 family 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, as one example
If a parent or stepparent is 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 with an appropriate written Family Agreement. This writing can assure fairness and understanding for everyone and often compensation for family caregivers without fear of Medicaid gifting penalties.
Where there is serious disagreement, different roads, including mediation might be considered.
- Here are some circumstances where mediation might be appropriate.
- Mediation is appropriate and often successful in matters where:
- The parties have or have had an ongoing personal relationship and have communication problems but can be flexible,
- The primary barriers to settlement are personal or emotional,
- The parties want creative solutions,
- The parties do not want the expense of litigation,
- The parties want a confidential forum to resolve their dispute,
- They are acting in good faith and want to act in the best interest of their parents.
Mediation might not be appropriate in extremely volatile or hostile situations or where there is abuse.
Opposing family members may be represented by counsel in a mediation. The process is confidential and parties are encouraged to speak freely.
The benefits of mediation include 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.
An 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. Mediation could be considered even after a petition for guardianship has been filed. 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 difficult senior issues and it deserves consideration in the right case.
About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.