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Best Practice

Vol. 7, Nos. 3 & 4

On Delivery of Legal Assistance to Older Persons

September 1996

Adult Guardianship Mediation
Susan D. Hartman

"Take One": Robert Jones approaches an attorney because he is concerned that his sister, Linda Smith, is not giving their mother, Mary Jones, the care she needs and is wasting her assets. Mary has lived in Linda's home for the last year. Linda is a single working mother with three children. The attorney prepares and files a petition requesting that Robert be appointed as guardian of his mother. Mary and Linda are both angry and upset at this action. The matter escalates into litigation in which accusations are exchanged. Mary is scared and humiliated; Linda is defensive, and Robert is indignant. The judge appoints a third party non-relative as guardian. The guardian moves Mary into an adult care home. All parties end up angry and hurt.

"Take Two": Robert Jones approaches an attorney because he is concerned that his sister, Linda Smith, is not giving their mother, Mary Jones, the care she needs and is wasting her assets. Mary has lived in Linda's home for the last year. Linda is a single working mother with three children. The attorney suggests that the parties try mediation. All three parties meet with a mediator who helps them identify needs and issues. They recognize that Mary enjoys living with Linda, but that she is lonely while Linda is at work. They also acknowledge that Mary is somewhat confused about her bills and financial situation, and that Robert is able and willing to help out. They agree that Mary will continue to live with Linda, and that Robert will help Mary with her bills and accounts each month. Mary will start going to a senior center three days a week. No guardian will be appointed. All parties agree to meet again in three months and review how things are going and make modifications as necessary. The parties end up understanding and respecting each other's concerns.

A. Guardianship and Its Consequences

Guardianship at its best is a way to care for and protect adults who are not able to meet their own personal needs or make decisions about their personal care or financial needs. It results from a court determination that a person--the respondent or alleged incapacitated person--is "legally incapacitated" and incapable of handling his or her personal or financial affairs or both. The court then gives to another--the guardian--the decision-making rights of the incapacitated person. Full guardianship constitutes one of the greatest deprivations of independence and liberty that a person can experience; the person typically loses most rights he or she has as an adult citizen. This loss includes such basic personal, contractual and legal rights as choosing where to live, handling one's own finances, making medical decisions, and even, in some states, voting or choosing to marry. Although exact terms and procedures vary, every state has a statute governing adult guardianship.

In the last fifteen to twenty years, advocates for persons who are older or have disabilities have called for more due process safeguards and procedural protections to protect respondents in court and to prevent unnecessary restriction of rights. During this time, all states have revised their guardianship laws to add rights and protections for the alleged incapacitated person. These reforms have included the rights to an attorney, to notice in an understandable form, to appear at the hearing and confront witnesses, to an independent medical examination, and the right to the least restrictive available alternative. A necessary result of implementation of due process rights is that the parties and court then take an adversarial approach to conflicts: the process becomes less a paternalistic imposition of supposed benefits on the respondent and more of a typical litigious, adversarial proceeding.

At least two concerns have arisen since these reforms have been enacted. The first is that, notwithstanding the reforms, guardianship hearings actually continue to be routine and pro forma, with little serious investigation of the capacities and incapacities of the individual, or of alternatives to guardianship. Hearings are typically extremely brief, usually under fifteen minutes. The person threatened with guardianship--often an older person--ordinarily has little or no role in the process that determines whether guardianship is warranted and often is not even present at the hearing. Statutory requirements are seen as hoops to jump through, not as a means of identifying needs and limiting intervention in the respondent's life.1

The second concern is that even if procedures are carefully followed, the adversarial process itself imposes unnecessary economic and emotional costs to the parties in many cases. The adversarial model typically results in a "win-lose" situation and forecloses possibilities of dialogue among the parties to explore alternative approaches and reach mutually satisfactory solutions. A petition for guardianship can have dramatic and traumatic consequences not only for the older individual, but for all the people involved. Petitions often arise out of, or lead to, disputes among family members or caregivers, or between the person alleged to need a guardian and the person requesting guardianship. Moreover, the process itself is often bitterly destructive of family relations. For example, parents whose children seek guardianship over them may feel betrayed and demeaned, or siblings may battle over who should be guardian or what is the best plan for the parent, when their basic concern is protection of inheritances. The granting of a guardianship by the court typically does little to ameliorate the situation.

An advocate for the respondent often finds him or herself facing difficult choices: do I disrupt the "family harmony" and possibly end up with the person's actual needs not met, by taking a strong adversarial position and asserting all rights? or do I let others take control of my client's life so that his or her apparent needs are met? Neither position seems ideal or likely to result in a satisfied client. We propose here a third alternative: mediation of the issues, either before or after a petition for guardianship has been filed.

B. Mediation As A Solution

The use of mediation can help older individuals and concerned family and friends find alternatives other than guardianship to resolve the issues that originally led to filing of the guardianship petition. Mediation is a voluntary, informal process in which the disputing parties meet in a private, confidential setting to find a mutually acceptable solution to their problems with the help of a neutral person (the "mediator"). The mediator does not judge or force the parties to reach an agreement. Nor does the mediator act as an evaluator or make a recommendation to the court. Rather, the mediator helps the parties communicate their concerns, identify issues to be resolved, and develop and agree upon a workable solution. If no agreement is reached, the court process is still available, although the content of the mediation session is not admissible as evidence. Mediation focuses on solving the problem, and allows the persons involved to search for more creative responses. It can allow the needs of the older person to be met without unnecessarily taking away the person's fundamental rights and autonomy.2

Since 1991, The Center for Social Gerontology (TCSG) has conducted pilot projects exploring the use of mediation in adult guardianship cases. The first project, through the Washtenaw County (Michigan) Probate Court, continues today, and is now under the direction of the local Dispute Resolution Center. Mediators from four additional mediation programs in Albuquerque, Chicago, Denver, and Tampa3 received training and technical assistance from TCSG in 1995 and are now mediating adult guardianship cases.

Because TCSG's model has involved referrals from guardianship courts, almost all of our pilot cases have been ones in which a guardianship petition had been filed. Issues included disputes about how the needs of the respondent could best be met, where the respondent should live, who should be guardian, what supervision (medical or personal) the respondent needed, and how property should be handled. About 35% of the cases in the pilot projects were cases in which a dispute arose after a guardian had already been appointed. These included disputes such as who should be successor guardian, whether the ward's funds had been appropriately spent, whether the ward should be institutionalized, or whether the guardian's powers should be limited or the guardianship terminated. Only a few cases arose before the parties went to court. These cases included issues of living place, use of funds, and daily care.

C. Appropriateness of Mediation

We have found that several factors are important if mediation is to allow parties to resolve guardianship issues without the financial and emotional costs of litigation. First, all necessary parties must be able and willing to participate in the process. If the older person (respondent) has an opinion on the dispute but is unable to take part in the process, even with the assistance of counsel, then mediation is inappropriate.

A second factor is maximum participation for the respondent. Because of balance of power concerns inherent in an allegation of legal incapacity, our policy has been to have an attorney or other advocate present to help the respondent in the mediation as needed. The attorney does not take the place of the respondent. If the respondent has an opinion on the issue being discussed, he or she is always a part of the mediation. Because of the definition of the mediation process, no decision will be made unless the respondent agrees with it. Even if the respondent is not an active disputant (e.g., in a dispute between siblings over who will be guardian), the respondent will always take part if he or she is able to do so. Only if he or she is not an active disputant and is unable to take part in the mediation, does the attorney or other advocate speak for the respondent in the mediation session.

A third factor is that the participants in the mediation must be able to learn about available resources. When trained mediators are familiar with community resources and services, they may be able to help parties explore options. Advocates and other professionals involved with the parties may also be of assistance in exploring options. However, in mediation, the role of the mediators or professionals will be not to recommend or refer, but to assure that the parties have the information they need to make reasonable choices, acceptable to all parties involved.

D. Availability & Use of Mediation

Mediation is not yet available to most families facing guardianship issues. There are at least three possible reasons for this. First, most mediators are not trained to do mediation involving guardianship issues. These cases can be quite complex, involve many parties, take a long time, and deal with a multitude of issues. In addition, there is usually an allegation of legal incapacity, which raises issues of ability to mediate and need for representation. Most mediators without special training do not feel able to take on these cases, and thus mediation may not be available even if parties want it.

The second reason that more cases do not go to mediation is that older people, their families, advocates, attorneys, aging agencies, and courts either do not know that mediation is possible, or are not sure that it is appropriate in adult guardianship cases. Mediation is a new and emerging field, and many individuals have never heard of it. While some courts have active mediation referral programs, particularly in specialized areas, such as divorce, other courts are just exploring the possibilities. TCSG's pilot efforts suggest that as people learn about mediation, they are satisfied with it. A substantial majority of both parties and attorneys who answered TCSG's evaluation questionnaires in our pilot sites said that they would use mediation again and recommend it to others. Because mediation is voluntary, often education about the process is necessary in order for people to want to try it.

Thirdly, because guardianship is often considered a "last resort," by the time someone files a guardianship petition, he or she may not be willing to consider other options. Attorneys and agencies working with older people and their families need to consider mediation as an alternative before a petition is filed, so that adversarial positions are not so firmly established, and parties are possibly more open to working and talking together.

E. New Grant Allows TCSG to Expand Guardianship Mediation Resources

TCSG is very pleased to have received a two-year grant from The William and Flora Hewlett Foundation to help address all of the above concerns and to bring adult guardianship mediation into the mainstream. Under the new project, TCSG will work extensively with courts, mediators, attorneys, agencies serving the elderly and others throughout the country to establish guardianship mediation programs and expand the use of mediation in cases where petitions have been filed and in cases where guardianship is being considered.

Two three-day training seminars on Adult Guardianship Mediation will be held in the Detroit metropolitan area, and will be open to persons from around the country. The first is in Ann Arbor on April 10-12, 1997. These national training seminars will focus on how to establish adult guardianship mediation programs and will provide specialized training for mediators on the laws, issues and mediation skills needed to mediate adult guardianship cases. They are targeted particularly to mediators and to court personnel and mediation program administrators. Day-One of the seminars will be devoted to establishing programs. Days Two and Three will be advanced training for mediators, including role plays based on actual cases. Contact TCSG for registration information.

In four selected states (two per year), TCSG will also provide extensive planning, training and technical assistance to develop statewide guardianship mediation networks and to establish mediation programs within the states. Selected states will receive a three-day state-specific training/network development session, with one day devoted to the practical steps of establishing and operating guardianship mediation programs, developing a referral and intake process, and maintaining a network among the relevant entities; and two days devoted to mediator training. States will be chosen through an application process. Applications and selection criteria for 1997 are available upon request from TCSG.

A prominent part of TCSG's training and technical assistance builds on an about-to-be-released reference book, The Adult Guardianship Mediation Manual. This excellent and extensive volume was developed based on five years' experience with our pilot programs. It will be available for sale to those unable to attend a seminar; and TCSG will be able to provide limited technical assistance to purchasers.

For more information about any aspect of this exciting new initiative, call Susan Hartman or Claire Tinkerhess at TCSG at (734) 665-1126.

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Susan D. Hartman, J.D., is Directing Attorney for The Center for Social Gerontology's Guardianship Mediation Program.

1 For further discussion of guardianship process, see Lauren Barritt Lisi et al., National Study of Guardianship Systems: Findings and Recommendations (TCSG, 1994).

2 For further discussion of guardianship mediation process, see Susan D. Hartman and Saidy Barinaga-Burch, Mediation Can Provide a Good Option in Adult Guardianship Cases, 20 SPIDR News 1 (Winter 1996).

3 Mediators from Southfield, Michigan were also trained, although their center is not formally part of the pilot project.

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The Center for Social Gerontology, Inc.
A National Support Center in Law and Aging
2307 Shelby Avenue  Ann Arbor, MI  48103
Tel: (734) 665-1126  Fax: (734) 665-2071