Don’t let the Courtroom be your first option.

A couple of weeks ago,  I expressed my concern about the hospital being some health care providers’ first option for care.  In the legal arena, I am equally concerned about the courtroom being the first option for dispute resolution.

When a caregiver, including a family member, takes advantage of a senior’s diminishing capacity for his own benefit, other loved ones may consider petitioning for Guardianship and/or Conservatorship.  If, due to a mental or physical health condition, the senior is truly unable to make reasonable decisions about her care, and there are no powers of attorney in place (or it is the agent, under the power of attorney, who is taking advantage of the senior), the appointment of a Guardian (who has control over the person, including her health care and where she lives) or Conservator (who has  control over the person’s assets) may be the proper route.  However, it is certainly not the easy answer, for either the proposed Guardian/Conservator or the other family members.  First, the Petitioner (the person claiming that a Guardian or Conservator is necessary) must obtain a report from a physician that the person is not capable of exercising reasonable judgment. Then, she must go to Court and convince the judge to appoint the Guardian or Conservator.  The other family member will likely object, especially if he is acting under  a Power of Attorney, and the senior may object as well.  This would result in a trial that would be costly both in terms of money and heartache for the senior and other family members.

If a simple family meeting is not possible,  I would encourage the family to consider mediation.  A professional mediator is trained in allowing all participants to express their views, and in pulling out the interests behind those views.  For example, the mediator could help the daughter who is outraged that her sister, who has mom’s health care power of attorney, is allowing her to stay home, express that she is really worried about Mom’s well-being.  If her sister could express that she’s worried about Mom’s well-being, too, but wants to allow her to preserve her dignity by honoring her expressed desires to stay home alone, this can be the starting point for an action plan.  If, however, these sisters had gone to Court, it is more likely that one would take the position that her sister is neglecting Mom’s needs, while the other asserts that her sister only wants to control everything, even though her mother doesn’t want that.

Mediation can even work when parties are too angry to sit together, as the professional can shuttle between the parties, in different rooms, with descriptions of their expressed concerns and drafts of documents.  The Courtroom would not allow for this, since most parties must be present, and witnesses must submit to cross-examination.

Mom Always Liked You Best, a Guide for Resolving Family Feuds, Inheritance Battles and Eldercare Crises,  written by Arline Kardasis, Rikk Larsen, Crystal Thorpe and Blair Tripp in 2011, is a succinct description of the types of disputes that might be resolved in this manner, as well as a handbook for doing so within the family. The American Bar Association and most state bars have Alternate Dispute Resolution sections,  and the National Academy of Elder Law Attorneys (naela.org) may have a list of members in your area who specialize in elder law mediations.  If this type of resolution doesn’t work, you  can always go to court if need be.  But it may be worth a shot to try to resolve things without the expense and bad feelings that could cause.

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