As attorneys encounter more family disputes, mediation should be considered before a contested guardianship.
After practicing elder law for 26 years, I’ve noticed a troublesome trend: a sharp increase in contested guardianships. Based upon comments of colleagues and on elists, this increase is ubiquitous.
When Elder Guardianships Become Contested
It is troubling that these disputes happen, although it is evident that significant preplanning was done. These cases usually arise when a parent becomes mentally incapacitated and children are now involved as caretakers. Often the parent did everything right before incapacity set in, executing thoughtful financial and health-care powers of attorney to prevent the need for court intercession.
But when sibling and caregiver conflict emerges, the family does not always honor these plans. Often, the root of these disputes has been festering for some time. When an elderly parent becomes ill and incapacitated, the family additionally experiences all of the emotional and financial stress that come with assisting an aging parent navigate our long-term care system.
Usually the problem arises when one sibling is nominated as agent under a power of attorney for health care and/or finances, and another sibling or the other siblings perceive, rightly or wrongly, that the agent is failing to do their job, exceeding their authority, or worse – even engaging in elder abuse.
These fact-specific cases involve complicated family dynamics that deserve sophisticated solutions.
Court-mandated ‘Check the Box’ Forms Fail To Provide Workable Solutions
Guardianship court could not be a worse forum for these disputes. Court guardianship contests, like most court contests, are zero sum games.
The court chooses a winner who will serve as the elder’s decision maker and who is usually granted plenary powers over financial and care-giving issues.
The state-mandated guardianship court forms have boxes to check for who decides and what’s decided. For example, in the order for guardianship, the guardian has the power to choose providers of medical, social, and supported living services.
But these forms do not address core issues of how to decide: what the elder would have wanted and what is in that elder’s best interest.
Litigated Guardianship Matters Have Emotional and Financial Costs
Litigated guardianship cases are costly. In contested matters, my fees typically range from $11,000 to $20,000 as petitioner’s attorney. Other expenses include attorney fees for the other represented parties, the guardian ad litem as well as adversary counsel, if involved.
Beyond the emotional drain, these cases can also permanently fracture the underlying family relationships. In extreme cases when courts find the family dysfunction insurmountable, a third-party corporate guardian is seen as the only option to protect an elder.
These cases are especially heart-breaking, as the legal decision maker in the elder’s life is a complete stranger – so much for preplanning.
Mediation Facilitates Family-oriented, Person-centered, Long-term Solutions
When parties mediate, they tell their story and are heard, instead of presenting evidence to a judge in a stilted question and answer format. The parties also learn to listen in a manner completely unavailable in any court setting.
The question becomes not just who decides, but rather how to decide – in a constructive, holistic manner that recognizes varied positions but acknowledges the ultimate aim: preserving the elder’s dignity and making decision in the elder’s best interest.
In the order for guardianship, the court awards a guardian the power to choose providers of medical, social, and supported living services.
In mediation, rather than simply delegating that authority, participants share ideas and concerns, and together collaboratively develop a coordinated caregiving plan. The process of decision making is enhanced, especially as issues do not end after the guardianship order is executed.
Thus, when a decision-making process is reached in mediation, future issues and challenges that inevitably arise in an elder individual’s life can be successfully navigated in a collaborative manner.
Adult guardianship issues are complex and intertwined:
- What is the least restrictive environment in which the elder can safely live, while maintaining independence and dignity?
- What can family members and caregivers do to make that care plan a reality?
- How do family members share information so all feel involved, but important day-to-day decisions are not hampered?
- How are the elder’s wishes honored, despite his or her cognitive impairment?
- How and who communicates with third party care providers, health care professionals, and other parties involved in the elder individual’s life?
None of these issues are addressed with any detail in the state mandated guardianship order and letters.
Mediation offers the best forum to address the key issues.
Who Participates in Elder Law Mediation?
In my experience, the participants are usually the children of the elder with capacity issues, and sometimes their spouses and children, if they have been involved in the elder’s caregiving. The attorney serving as guardian ad litem (GAL) participates as the advocate for the elder’s best interest. If the elder has adversary counsel, that attorney participates.
The elders in the cases I have handled have not directly participated, due to capacity issues. His or her position is represented by the GAL and or advocacy counsel. Attorneys for the petitioner and the other children usually do not participate, but are available by phone if a party needs to consult with counsel before feeling comfortable to proceed.
There may be times when certain subject matter experts may be needed, such as an elder law attorney knowledgeable about Medicaid and Medicare. If care planning is at issue, it may be useful to have input from the elder’s physician and or residential care-giving staff.
Ombudsmen from the Board on Aging and Long-Term Care can also be useful when there are issues about the elder’s rights in terms of care-giving schedules, visitation, medication, and diet.
Mediation Should Become as Common in Guardianship Court as in Family Court
The propriety of the mandatory use of mediation in divorce disputes, especially those involving children, is not questioned. Elder Law attorneys joke that they are really practicing family law, although in a different form and forum – but behind the humor is a nugget of truth, because guardianship and elder law matters are so closely tied to family matters that it may be appropriate in these cases to require mediation before they are sent to a court.
As in family court, not all cases are suitable for mediation – for example, when there are allegations of elder abuse, or when the parties may simply be too committed to the fight. But I would assert these cases would be the exception and not the rule.
There are several states with successful long-standing elder mediation programs. Alaska has a long-standing court adult guardianship mediation program. According to a 2009 study of Alaska’s program, parties reached agreement in 87 of 103 court-referred mediations, and participants reported being highly satisfied with the process.
I am not aware of any party who has litigated a case in court, no matter the result, who would describe their experience as highly satisfying. Not only are court resources saved with a successful mediation, but creative solutions are reached and more importantly, family relationships are preserved, and the elder’s voice is heard and respected.
In my experience, instead of one child being awarded all the power, mediated guardianship cases keep all of the family members involved in some capacity. Shared visitation schedules are negotiated, shared communication methods created, and the family becomes a team focusing on the care and protection of the elder, rather than debating with each other about who is in control.
Many states now have some form of successful guardianship mediation referral system. As Wisconsinites age, these contested matters continue to proliferate, so it is time for us to explore the use of an adult guardianship mediation referral system.