MEDIATING DISPUTED ADULT GUARDIANSHIP AND CONSERVATORSHIP ISSUES
The Colorado Lawyer, June 1999, Vol. 28, No. 6, p.45
Specialty Law Columns
Alternative Dispute Resolution Column/Estate and Trust Forum
Mediating Disputed Adult Guardianship and Conservatorship issues
By Joe Epstein, Steve Berkowitz
I was ruined but twice in my life:
Once when I lost a lawsuit,
Once when I won a lawsuit.
Voltaire 1
Attorneys, courts and clients in increasing numbers in dealing with disputes relevant to mental incapacity, are looking for alternatives to litigation. Through the presentation of a case study, this article illustrates when and how mediation might be used to benefit the parties involved in disputed adult guardianship and conservatorship cases. Guidelines and practical pointers are discussed and applied to the case study in an effort to help practitioners determine when mediation should be considered as an alternative to litigation.
Case Study
Margaret Henderson, 92, and her husband, Bill, 96, have been happily married for more than fifty years. They have lived in the same house for more than forty-seven years and have three adult children, their two sons, Michael and Tom, live out of state and see their parents once or twice a year. The Hendersons also have a daughter, Beverly, who lives in a nearby apartment. Single and currently unemployed, Beverly visits her parents every day.
Margaret had assumed sole responsibility for the upkeep of the house, as well as all other household affairs, and has recently been required to assist Bill with all of the activities of daily living, including dressing, bathing, and eating. She continues to enjoy Bill's companionship and does not mind his occasional episodes of helplessness and forgetfulness. However, Beverly is increasingly concerned about her mother's ability to handle the extra responsibilities around the house, as well as having to provide so much care for Bill.
Beverly telephones her two brothers to discuss the situation. She explains that she would like to be appointed Bill's guardian in order to ensure his proper care. While Michael and Tom believe their mother may need help caring for the household herself, and their dad, they are suspicious of Beverly's true motives and suggest to Beverly that her not having any source of income at the present time is the real reason behind her wanting to move into her parents' home. With this attitude in mind, Michael and Tom reject Beverly's suggestion, telling her that they are just a two-hour plane ride away.
Beverly and her brothers are unable to reach an agreement. Angered by her brothers' accusations, Beverly hires an attorney and petitions to be appointed her father's guardian. Beverly asserts that, in spite of her mother's good intentions, Margaret is unable to care properly for all of her husband's needs in addition to caring for herself. Beverly also claims that Margaret has become somewhat forgetful herself and can no longer continue at her previous pace.
Margaret, Michael and Tom are hurt and angry about Beverly's action. Michael and Tom hire their own attorney to contest Beverly's petition and to file a petition of their own, requesting that one or the other of them be appointed as their father's guardian. Margaret believes that she is managing quite well and resents all of the children for intruding into her and her husband's lives. Ultimately, all of the parties have become angry and alienated from each other, and the family has essentially ceased communicating, other than through their attorneys,.
After a hearing, the judge appoints an unrelated professional third party as Bill's guardian ad litem ("GAL"), who meets individually with all the parties and interested persons. The GAL uses her best efforts, given the time available to determine what is in Bill's best interests and comes to the preliminary conclusion that Bill's needs would be best served by admitting him to a nursing home. Despite Margaret's strong resistance, arrangements are made, and Bill is moved to the nursing home.
Margaret is now alone in the home she shared with her husband for more than forty years. Further, although she sometimes gets very lonely, she no longer speaks with Michael or Tom or visits with Beverly. Margaret recently failed her driver's test, and her license was revoked. Too tired and weak to brave the cold Denver winters or to ride the bus, and unable to afford a taxi on her meager income, Margaret has not visited her beloved husband for more than three weeks. Meanwhile, Bill has had difficulty adjusting to his new living quarters and repeatedly asks the staff about the absence of his wife and children.
Now, Margaret and her family would have to agree with Voltaire's assessment of litigation. In this instance, each family member lost in litigation. Many guardianship and conservatorship cases deal with similar issues and similar underlying family dynamics. The remainder of this article explores using the mediation as an alternative to litigation to resolve disputes in guardianship cases. The article presents some general guidelines and considerations for elder/probate law attorneys to use in determining whether mediation may be appropriate for cases involving similar types of disputes.
Screening Factors: Is Mediation Appropriate?
First and foremost in determining whether mediation is appropriate in a dispute involving an older adult, it must be determined whether that adult has the physical and mental capacity to participate in a mediation. Mediation involving older adults presents unique challenges. While there is presently a statute stating the definition of an incapacitated person, it is important to recognize that in many cases, an older adult's mental capacity fluctuates along a continuum ranging for little or no understanding of what is going on to virtually a complete understanding of the issues.
At present, an incapacitated person is defined as "any person who is impaired by reason of mental illness, medical deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person." 2 The practioner should be aware that a subcommittee of the CBA Trust and Estate Section Statutory Revision Committee is revising the current guardianship and conservatorship statute in Colorado. The current statute will likely be replaced by the Uniform Guardianship and Protected Proceedings Act ("UGPPA"), to be introduced in the legislative in 2000. It is anticipated that there will be a number of changes to the present Act, including the definition of incapacity for guardianship proceedings.
One particularly useful article sponsored by the American Bar Association ("ABA") Standing Committee on Dispute Resolution and the ABA Commission on Legal Problems of the Elderly notes that:
- [r]ecognition of the individuality of older disputants is the first challenge for a sensitive mediator. But consideration of conditions often common to the aging process is the second. Mediators assisting older disputants should be aware of the physiological, sensory, mental, social and psychological changes which often come with age - while at the same time not assuming the presence of any of these conditions in one individual client, since each ages in his/her own unique way. 3
The article contains a number of "tips" for mediation that pertain to conducting mediations for older adults in a manner that takes into account the age factor and, if utilized, may make it more feasible for the older adult to participate. For example, it might be easier for the older adult if the mediator came to the older adult's residence, rather than requiring everyone to come to the mediator's office. In determining what might be most convenient for the older adult, the presence of stairways, wheelchair accessibility, or slippery surfaces must be considered. If it is necessary that the mediation be conducted in a place to which the older adult must travel, it is noted that access to public transportation must be considered. 4
It also may be necessary to take into account problems presented by the type of visual and hearing deficiencies older adults often experience. For example, because older adults are more sensitive to the sun glare, care must be taken to place them in a seat where the sun will not be troublesome. Likewise, consideration must be given to placing the adult in a location where their ability to both see and hear is optimal. The mediator may need to make certain that the older adult is hearing what is being said, by using hand and facial expressions, if necessary, to emphasize what is being said, speaking in a low pitch and enunciating clearly, rephrasing and repeating important points, including statements made by the older adults themselves. 5
Once it has been determined that all parties have sufficient capacity to participate in the mediation (with or without special assistance and accommodation), there is a number of other factors that must be considered in determining whether mediation would be appropriate. Some of these factors would pertain to any mediation, while others would be more critical when dealing with older adults. In determining whether to recommend mediation in a particular case, a thoughtful attorney would do well to consider:
- whether the parties are likely to benefit from an ongoing relationship - that is, are they friends, relatives, business associates, next door neighbors, and so on. In such cases, it is more likely that a facilitative, interest-based form of mediation would be beneficial;
- whether all necessary parties are willing (if not eager) to come to the mediation table. If one or more of the parties have to practically be "pulled by the hair" in order to get them to the mediation table, the prospects for a meaningful resolution of the issues through the use of mediation diminish considerably;
- whether the process will address the privacy, dignity, and confidentiality needs of the parties;
- whether any power imbalances between the parties can be adequately addressed; in other words, whether one party is so dominated by the other party that the weaker party will go along with whatever the dominant party wants. If so, there is an ethical concern about the propriety of conducting a mediation under such circumstances. 6 In fact, counsel for the older adult should carefully discuss the situation with his or her client in order to make sure that the client wants to participate and is willing to give permission to disclose medical records, including psychiatric records. In terms of addressing the power imbalances, consideration should be given to the possibility of having an advocate like a government-sponsored ombudsman, if available, or some other party who is in the position to impart some balance to the situation accompany the alleged incapacitated person;
- whether mediation can be more efficient, cost effective, and timely than an action filed with the court and
- whether a mediation process provides a potentially more creative and hospitable environment for resolution than a courtroom.
If most of these questions are answered in the affirmative, mediation may be appropriately recommended.
Finally, in evaluating the appropriateness of mediation in a given case, the practitioner should be aware that the Model Standards of Conduct for Mediators, jointly adopted by the Litigation and the Dispute Resolution Sections of the ABA, as well as the Society of Professionals in Dispute Resolution, state as follows: "Self-determination is the fundamental principal of mediation. It requires that the mediation process rely upon the ability of the parties to reach a voluntary, un-coerced agreement. Any party may withdraw from mediation at any time."
Mediation and the Henderson Family
In the above case study, the parties were unable to make the simplest decisions. The siblings each had their own hidden agendas clouding their judgment as to what solutions would have been in the best interest of Bill and Margaret. The children mistrusted each other. This led to increased conflict and inflexibility. This inability to communicate led to a costly and personally destructive court process.
No one can guarantee that the result would necessarily have been changed had the parties used a mediator early in the process. Nevertheless, the authors submit that with the use of facilitative interest-based mediation, Bill and Margaret would have felt that they had more input in terms of deciding the course of their own lives. Because a mediator is not limited to making suggestions based purely on legal remedies, perhaps Margaret and Bill would not have had to separate.
The children succeeded in damaging the family relationship, possibly beyond repair. In this instance, as with most probate cases involving family members, maintaining continuing relationships after the battleground has cleared is essential. A facilitative interest-based mediation process would have assisted this family in understanding what was happening with their dad and would have helped the children learn more about their parents' needs and wishes. The concerns and the motivations of the siblings could have been explored in a less destructive setting.
Mediation can provide many benefits in many arenas. Some of the benefits listed below are of a more general application, but a number of them have particular applicability to cases where one or more of the disputants is an older adult.
Confidentiality, Privacy, and Safety
Most families would prefer to have their family disputes resolved in a private fashion. Unfortunately, disputes that are heard in a courtroom do not usually make that possible. A mediation would have given Bill and Margaret a better opportunity to speak freely in a safer setting. Margaret probably could tell the mediator how her immediate family functions. She could help the mediator identify Bill's and her emotional, physical, financial, and medical needs. The sons were clearly distrustful of their sister's motives. Mediation may allow difficult issues to be aired and, quite possibly, cleared.
Mediation in this safe setting has the potential for maintaining and improving ongoing relationships. 7 Bill and Margaret's best interests would have been best served by the children pulling together. By focusing the attention of all the children on their parents' needs, a skillful mediator can often get the parties to focus on creating solutions rather than creating obstacles, by bringing to their attention various ways of handling difficult situations. Once the parties are engaged in the process of problem resolution, there is always the chance that bridges may be built toward further communication.
Voluntary and Nonbinding
If Bill and his family were amenable to mediation, half the battle would be already won. No one is forced to show up and participate. Under these circumstances, parties are likely to be coming to the table with the goal of accomplishing something. Again, if one party is dissatisfied with the outcome and no amount of talking will help at arriving at an acceptable solution to all, there is always the opportunity to file an action in court.
Flexibility and Creativity
One of the great attributes of mediation is that it allows the parties to draft their own solutions to a dispute, rather than having a court impose a solution. 8 In this case, a mediator could have assisted in recommending a neutral third party to evaluate what each of the children had to offer in terms of taking care of their parents and in making appropriate suggestions as to how each child might help. Alternatively, the parties would have been free to agree to have a third party of their own choosing evaluate the needs of Bill and Margaret and then explore with each of the parties the manner in which they could each be of assistance.
For example, if Michael has a computer and is conversant with a program such as Quicken, perhaps he could take care of the family's finances. Both Beverly and Tom would get monthly reports. If the parties agree that Margaret does need respite care and that Beverly is in the best position to provide such care, they could explore whether Beverly's services could be compensated by providing free room and board and/or a fair hourly rate. The family would acknowledge, as part of this process, that this is an evolving and not a static situation. They could design a procedure for re-visiting the issues when a significant change occurs in Bill's condition.
When a mediation process works well, the parties have more tools to work with the next time around. For example, the parties might be able to agree to have someone act in the capacity of a GAL in a limited fashion, where the older adult may need assistance only in certain areas. Additionally, since the parties are not limited to resolving the issues on the basis of purely legal remedies, which can be limited at times, the mediator has the opportunity to focus on the emotional issues that are involved in guardianship disputes to a greater extent that would be possible in a courtroom.
Communication
Another advantage to mediation, in contrast to litigation, is that the latter tends to inhibit productive communication between the parties, while mediation not only encourages, but requires communication in order to be successful, in a facilitative interest-based mediation; participants are required to work together. Unlike litigation, mediation offers the potential for repairing, maintaining, and improving relationships. In this case, mediation could have offered the older adults (Margaret and Bill) and their children the opportunity to work together to reach a more creative solution than that which ultimately occurred in court.
Choosing a Mediator
If the parties, acting through their counsel, can agree on a mediator, they have taken the first step toward reconciliation. Further, as mentioned above, a successful mediation process provides the parties with more tools to work with the next time.
Ideally, the mediator chosen by all parties will have experience in dealing with family dynamics, bio-medical ethics, and elder law. A mediator is a facilitator, a reality check, a scapegoat, a sounding board, and a problem solver. During the course of the mediation process, the mediator may find ways to help the parties identify their goals and their underlying motivation. The mediator can meet with the parties separately and together in order to analyze and suggest solutions to the problems presented.
A mediator also may suggest bringing in other individuals to evaluate the issues. In Bill and Margaret's case, perhaps a neutral case manager could have been brought in by the mediator to determine Bill's needs for assistance, to determine the cost of that assistance, and to determine whether that assistance could be provided at home.
Practice Pointer
It is obvious that elder law/probate attorneys will find themselves under increasing pressure to engage in one form of alternative dispute resolution ("ADR") or another. For example, Rule 2.1 of the Colorado Rules of Professional Conduct requires counsel to explain the ADR process to clients. This being the case, a well-designed ADR disclosure form can help attorneys sit down with their clients for a discussion of less costly and potentially more creative dispute resolution mechanisms.
Conclusion
With the dramatic and increasing shift to a more elderly population, attorneys need to know when to recommend mediation and how best to help their clients with the mediation process in determining whether to recommend mediation. In a particular case, consideration should be given to the screening factors listed above, especially those issues regarding the physical and mental capacity of the older adult to participate meaningfully in the mediation.
Certainly, most probate/elder law attorneys appreciate that guardianship and other probate-related matters raise difficult issues for older persons and their children. In the right set of circumstances, mediation may provide a better forum than a courtroom would. In this area of law, perhaps more so than in many other areas, identifiable legal issues often hide important emotional, personal and family issues. These hidden concerns may stay hidden with litigation. Given the enhanced opportunity to communicate offered by interest-based mediation, this process creates an opportunity to address the underlying issues and develop creative solutions, not only in guardianship matters but in any probate-related proceeding where it is likely that the parties will or should have an ongoing relationship.
NOTES
1 Quoted in Briggs, "ADR in Colorado: Past and Present," 26 The Colorado Lawyer 103, 107 (June 1997)
2 CRS 15-14-101
3 Kessner and Wood, "Mediation: The Coming of Age - A Mediator's Guide in Serving the Elderly," ABA Standing Committee on Dispute Resolution and Commission on Legal Problems of the Elderly for the National Institute for Dispute Resolution (Feb. 1988) at 3.
4 Id. at 5-7
5 Id.
6 Gary, "Mediation and the Elderly: Using Mediation to Resolve Probate Disputes Over Guardianships and Inheritances," 32 Wake Forest L.Rev. 397, 440-44 (1997).
7 Id. at 428
8 Id.
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