Staying Out of the Courtroom

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Families who are attempting to attend to the needs of their elderly aging loved ones may find themselves in conflict over who will be in charge, how the available money of the elder will be spent, and who should take over when their loved one can no longer manage living on his/her own. Powers of attorney may give family members the authority to manage money for the elder, but when the elder is not competent to sign such a document, a court appointed guardian (also called a conservator in some places) may be given the job of overseeing the finances and sometimes the medical needs of an elder who is not competent to manage on his own.

The job of a court-appointed guardian is difficult. The court requires meticulous accounting of all expenditures. Family members may be unable or unwilling to undertake this responsibility, yet unwilling to live by the rules the guardian sets up. Conflicts between guardians and family members are common. The guardian, sometimes an attorney for the guardian, and other family members may find themselves fighting over who is doing what with the elder’s funds, visitation of the elder, and who is in charge. Enormous amounts of money can be spent and wasted by going to the Commissioner or judge involved in the guardianship to try to sort out these conflicts. It rarely seems to come up that it is possible for people to sit down together and work things out without the court’s involvement.

legalscales101We are proponents of using mediation, also called conflict resolution or dispute resolution, to avoid spending the elder’s money on courts and legal battles. Critical to the process is a mediator or mediators who can act as neutral parties, not representing anyone, to assist those involved in the conflict to reach agreements, and to put those agreements in writing. The mediators in these conflicts are something like referees and guides, attempting to assist in avoiding combat, and getting those who are fighting with one another to focus on solutions, rather than ongoing battles, who is right, and who should have more power. Family members and responsible parties who are in disagreement can come up with working agreements, even if the underlying conflict never goes away. It amounts to “agreeing to disagree”, but with an important next step of making a realistic plan to move forward. Rules can be established for the visitation, care, and financial needs of the elder with the input of those involved. The courtroom setting is not conducive to discussions. Evidence is presented, arguments are made, orders are issued by the commissioner or judge, and some parties may be very dissatisfied, and angry at how much the lawyers charge to go to court and do this, taking payment from their elder’s funds.

Mediation is a more satisfying, less combative way of trying to solve problems than litigation. Problems of elders and their families are no exception. “Preventive” legal assistance in the form of mediation can also save a lot of attorneys’ fees in the long run. If you are involved with an elder, and are facing a struggle in which court orders may be requested to solve conflicts, rather than a guided discussion with a neutral person to resolve your dispute, request mediation. It may be a better alternative.

Requesting mediation may involve contacting a mediator yourself, or asking the party with whom you are having the dispute to do so. Mediators are generally willing to call all parties involved and invite them to participate. They will take on the task of approaching the person with whom you are having difficulty getting along and diplomatically suggest this process of dispute resolution. All the parties involved normally share the cost of the mediators equally. Getting together for mediation is by agreement among all involved. It can take place in an office, private home, or any other neutral place where privacy is available to protect the confidentiality of all. Statistically, about 80-85 percent of all disputes that get to mediation are resolved at mediation. With that success rate, we encourage you to consider it. Avoid the courtroom!

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