By Shauna Tucker, Lawyer
Elder mediation is when you and
your family members use a mediator to help you negotiate and formulate solutions
to concerns arising because you, or a parent or other important family member
is aging. Since you and your family
members decide what issues you want to talk about and how to resolve them, the
solutions and agreements you generate are specific to your family and what is
important to you.
There is no limit to
the kinds of problems families bring to mediation, but typical “elder
mediation” cases include:
about living arrangements for the “Elder”.
Sometimes there is conflict between parents who want to stay in the
family home and adult children who feel it is time their parents considered a
care facility. Sometimes elders want to
move, but need community and family support to make it happen and don’t know
where to start. Talking about where an
elder wants to and should live often triggers conflict within families;
about how to provide the necessary emotional, physical and financial support for
a declining Elder. If an aging parenting
is declining physically or mentally providing care can strain human and
financial resources – especially as needs change over time and it gets harder
and harder for adult children to keep “juggling”. It can be hard to acknowledge that caring for
our loved ones can be a strain, but frank and respectful conversation can
assist family members in managing that care while meeting their other personal
making within the family business about how to manage the company now mom or
dad are easing back at work; and,
o Conversations about “family money.” The re-marriage of a senior can cause considerable consternation in families where there was a previous expectation about what would happen to “famly money” and a concern that the new spouse will expect to inherit.
“My kids are squabbling like are still children. Why can’t they figure out that although I am aging, that it is me that gets to decide where I live?”
“I don’t want to talk to my sister. She’s just been spending my mom’s money but not visiting her at all. I just want a lawyer to go to court, get my mom declared incompetent and to make me her guardian so I can make sure she gets a proper care-giver”.
“My oldest daughter just told me that I need to give her a power of attorney, she just told me that I wasn’t looking after my money properly.”
“I really want to start cutting back at work so I can travel, but I’m worried that the kids need me here to run the business. I think I should just sell it, but I’m not sure that youngest kid of mine is employable anywhere else!”
“You need to evict my brother from the basement suite, he is bleeding you dry and I don’t care if he helps with the yard work.”
“You need to get a new will Dad because Mom would be rolling over in her grave if she knew that your new wife, Betty is going to get any money. Plus Betty is driving the family apart because she is trying to control everything that you do.”
“I am so exhausted. I have been caring for Mom for 5 years and my marriage is on the rocks because of it. My selfish sister who does not even live in town wants to call the shots and she doesn’t even really care about how hard it is to care for Mom.”
“Our grandpa just got diagnosed with Alzheimer’s disease. All of us in the family want to make sure he is cared for both financially and emotionally as his health declines.”
“We were just called for the 4th time this month that Mom had managed to walk out of her care facility. This time she was found walking up the very busy Pat Bay Highway in the rain with just her slippers on and no jacket. I want to move her to a facility with better care and my brother is refusing to pay his part of it. What do we do?”
“Dad had his second mid-life crisis and married a woman he met in his retirement facility. I found out from my friend who works there that he is her 5th husband. I think she is after his money. He is going to be furious about it if I ask him about it and yet I am sure she is after his bucks. What can we do to make sure he doesn’t get sucked in?”
These are “normal”
problems – the kind of things all families fight about. Why should anyone come to mediation to deal
differences of opinion about tough family issues are normal, they touch on
legal issues that can result in full blown court room battles if problems are
not resolved. Elder mediation can reduce
the potential of there being a divisive legal dispute or an ongoing rift
between aging parents, siblings or spouses.
Addressing conflict, openly and respectfully, and in a forum where the
goal is to reach agreement on how everyone can move forward, is the best way to
ensure problems are dealt with.
mediation is a lot like family mediation, which most people know about. In mediation, the parties come together, and
with the assistance of a neutral facilitator (the mediator) they identify their
problems; put their interests and needs on the table; and work to solution. All mediation is collaborative and
consensual. If all of the parties in the
room don’t come to agreement, no one is going to force a solution on the
family. Family members are most likely
to follow an agreement they reach themselves and all agree to.
mediation, however, can look a little different from other family mediation
is likely to involve multiple parties such as the Elder, the adult children and
possibly the Elders’ grandchildren. If a
neighbor provides significant support or care, she might be at the table too!
is concerned with including the views of the Elder in the mediation even if legal
capacity might be in issue. All
important family voices get heard and considered.
Often there will
be health care professionals, social workers, and elder care facility managers
present in order to provide useful information that may be needed for there to
be a decision to be made.
The ongoing nature
of relationships between the parties is usually different in Elder Law than it
is in family law. The parties typically have an interest in maintaining personal
relationships with each other that provides an incentive to reach mutually
The law intersects with Elder Mediation in two principle ways.
First, much of what the parties discuss or the ways in which they need to implement their decisions will involve legal tools. The preservation and distribution of family assets; the creation of Powers of Attorney; the sale of homes; and contracting with care-homes, for example, all involve law.
Second, if the parties come to Agreement, that Agreement will be a binding legal contract.
The parties will be strongly encouraged to get independent legal advice about the contract if they are not already working with lawyers.
While your mediator must be neutral, and not offer any party legal advice, it is important to work with a mediator who understands the intersection between mediation and law to ensure all participants are seeking the necessary legal information and advice to reach decisions that work for them and their families.
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