Guardianship & Probate Legal Actions

PROTECTION OF VULNERABLE ADULTS THROUGH GUARDIANSHIP AND CONSERVATORSHIP

My passion is to help individuals and families live more peaceable, happier and healthier lives.   Ideally, people live within the nurture and protection of a larger family unit.  As we age, we remain independent as long as possible, but it is a fact of life that sooner or later, everyone will depend upon others to some degree.  When a person becomes so incapacitated that they can no longer care for themselves, make decisions, or manage their business affairs, sometimes a crisis ensues.  The event giving rise to the crisis may be a fall, or a stroke, or an automobile accident.   If sufficient legal and care planning has been done, families know who is designated as being responsible, there are clear lines of authority, and there are mechanisms for accountability.  Implementing legal documents to ensure this is the reason everyone needs a consultation with a good elder law attorney.  But sometimes, planning has not been done, or sometimes there may be concern that authority granted under those documents is being abused.  In worst case scenarios, there may even be concern that the Elder may be subject of physical, mental, or emotional abuse.

When families encounter difficulties or challenges, the first line of hope is to draw upon resources of the family to reach agreement and a good care plan.  I trained in the  field of Elder Mediation with Zena Zumeta and Susan Butterwick, attorney mediators in Ann Arbor, Michigan whose careers have been devoted to mediation of family and organizational conflict.  I have also been active in the Elder Decisions section of the Association of Conflict Resolution since the inception of the Elder section of ACR in 2009.   As a mediator, I am always hopeful for a family to reach agreement.  On the other hand, sometimes this is not possible or there may be an emergency.  It has happened that in several cases I have been consulted in with regard to mediation, there has been a concern that the elder was being abused.  In some cases, there has been an emergency situation requiring prompt action to protect the Elder from harm.  As a result of the need in these cases, I began practicing in the area of adult guardianship and conservatorship, which in South Carolina are two distinct actions in probate court.

If you have concern for the safety or care of a vulnerable adult, or if you are a caregiver trying to manage care in the context of a family that is in conflict, please feel free to contact me, either by calling 803-414-0185 or by using the form below.

When to suspect Undue Influence or Exploitation of Vulnerable Adult

Has an aged friend or loved one had a shift of attitude or begun acting strangely?  Elder Abuse doesn’t necessarily leave physical bruises.   Abuse includes any kind of abuse of power and exploitation of a vulnerable adult.  It is not always obvious or easy to put your finger on.   Indeed, the elderly person themselves may not even realize they are being abused or exploited.   For example, suppose an elderly person needs some help shopping and happens to purchase a gift for their helper while they are out.  Where is the line between a reasonable gift, versus being taken advantage of?   Sometimes that is not an easy thing to tell.  This post gives some signs to look for.

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Do I Need a Trust?

I like the simple way my colleague Joy Rosenthal, an attorney mediator in New York City, describes a trust:

A trust is a simple concept – imagine a pot of money. The person who puts the money into the pot is called the grantor. The person who is in charge of distributing the money is called the trustee. And the person who will actually receive the money is called the beneficiary. Once you have these three elements, you have a trust. Notice that the money in the pot is separated from that of either the grantor or the trustee. However, the grantor can be (and often is) the trustee.

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A Video About Elder Mediation

This video about Elder Mediation is produced by Aging Parents.com

Elder Mediation in South Carolina

If you are wondering whether Elder Mediation can help your family, you are probably asking the question because your family is having some challenges or disagreements involving issues related to an elder or a vulnerable adult, or a probate matter.  If your family is having such conflict, it is always worthwhile to at least consider mediation.   

You may wonder, “What is Elder Mediation,” and even, “What is Mediation?!”  Please take three minutes here to learn more.  Then, if you are interested in exploring in more detail, please call 803-414-0185 for a phone consultation, or submit a question by filling out the contact form on this web site.  Read More

What is Elder Mediation, and How to Choose a Mediator?

Are you concerned about conflict in your family, or a potential conflict, that involves an elderly person, changes related to aging and increased vulnerability, or administration of a probate estate?  If so, your family may benefit from Elder Mediation.  Elder Mediation offers the same benefits as other mediation:  it is private, it keeps your family in control of its own decisions, it is voluntary, and it can be a very effective form of conflict resolution.  There are other factors which make Elder Mediation very different from other types of mediation.

Elder mediation is distinguished from other forms of mediation by the types of issues involved.  There are three recurring types of issues that tend to come up: (1) resolving differences about planning for future financial or care scenarios, including estate planning, business succession planning, and advance care planning; (2) helping to achieve family agreement during a time of immediate crisis or disagreement; and (3) mediation to settle disputes over estate matters.

In addition to being distinguished by types of issues involved, Elder Mediation is also distinguished by its complexity.  Conflicts are likely to involve complex legal and financial issues, multiple stakeholders, entrenched family dynamics, emotional challenges, and a vulnerable adult.  Elder mediation helps embattled family relationships overcome these challenges in two ways.  First, communication is controlled so that negative feelings can be expressed in ways that don’t damage relationships.  Second, the mediation process facilitates real communication and enables parties to address the core interests that are causing conflict.  The aged adult will also be included in discussions and in decisions to the fullest extent possible, taking into account their capacity to make decisions.

Attorneys, accountants, and elder care managers are usually the first ones consulted by a family seeking proactive help.  No matter how much expertise these professionals have, they can’t do their jobs effectively when divided families can’t agree on goals or when all concerns are not brought forward.  And, just one family member who disagrees with the goal can destabilize the most extensive planning and cause tens of thousands of dollars to be expended to defend a lawsuit.  This is where an Elder Mediator adds key value.  A neutral mediator can help the parties ensure that complex, preventive planning and care management takes into account all interests, is realistic, and is based on a unified family agreement.  When these measures are taken, there is much less likelihood of later challenge. 

Sometimes the barriers to agreement can be profound.  Siblings may vie for favor, tempers may flare; distrust builds, and relationships suffer.  In emotionally volatile situations, the family needs a skilled, neutral party to help the family put aside old patterns of interacting and adopt new patterns, in order to address the serious issues that every aging family will go through.  While a mediator is not a counselor, ideally an Elder Mediator will assist the family in overcoming old patterns of relating that are no longer working, so that the family can come together in a more unified way to confront the new or impending reality.  

A family navigating the path of caring for an elder may also encounter unforeseen obstacles.  Sometimes, there may have been some condition which has been so much a part of the family’s life that it isn’t even noticed until something else goes awry.  For example, suppose one of the adult children has mental or physical disability.  That child may have been able to function by living at home or receiving substantial help from the parent.  As the parent ages and becomes less able to “take care of” that person, other family members may become more acutely aware that something doesn’t seem right.  Perhaps the issue is alcoholism, mental illness, or perhaps there is suspicion of financial misdeeds.  Unfortunately, sometimes adult siblings may be forced to address these difficult issues at the same time they are having emotional and difficult conversations with or about their aging parent.  These times of crisis are challenging for families.  The presence of a neutral mediator can help keep the conversation on track.

Another  challenge of Elder Mediation is that various family members may have vastly different perspectives and ideas about what solutions to various challenges ought to be.  Sometimes what a parent wants is not what the same as what their adult child would want, and different members of the family may all want or expect different things.  Conversations can be difficult, and siblings may be forced to interact with one another under the rules of family system they left behind.  The CEO of a corporation may find himself being placed in the role of “little brother” or the sister’s concerns may be dismissed as too “selfish”.  The Mediator may need to assist these siblings not only in stepping outside their childhood roles and stereotypes, but also to encourage each to consult outside sources for a “reality check” concerning the veracity of their viewpoints.

These are just a few of the issues!  Ideally, an Elder Mediator will have flexibility, training, and intelligence to respond nimbly to the unique challenges of each situation.  

In selecting an Elder Mediator, seek a well seasoned mediator who has specific skill and training in Elder Mediation.  Specialized legal knowledge is important, but awareness of family dynamics and skill in multi-party mediation is also vital.  Thus, while many Elder Mediators are attorneys by training, many others have come into the field by way of their specialized background in gerontology, nursing, social work, or counseling.  The mediator hopefully can tell you the name of a training institute where they studied this specialized form of mediation, or they will demonstrate an extensive professional background in dealing with Elders and their families.  Look for signs that the potential mediator has expertise in (1) legal and financial issues of aging (financial planning, care planning, business succession planning, guardianship or probate administration), (2) multi-party, complex mediation (siblings, in-laws, and grandchildren all may be stakeholders and necessary parties to a mediation), and (3) legal issues related to competency and capacity (an Elder Mediator must take special precaution to ensure that the aged person, who may be a vulnerable adult, is accorded as much autonomy and decision making deference as his or her physical and mental capacity will allow). 

Last but not least, a good Elder Mediator will run a tight ship.  When emotions get stormy, the seas can get choppy.  A good Elder Mediator will calm the waters by keeping the conversation focused and civil.  For it is only through listening to one another that a family can hear each other’s concerns, develop solutions that address those concerns, and come up with the best solution to address the needs not only of the aging adult, but of their caregivers and loved ones as well.

As difficult and challenging as conversations about Elder issues may be, wise is the family that has them.  While honesty, candor, and open conversation may be challenging and difficult, the more fully the issues are discussed, and the better the quality of conversation, the better the result will be.  Yes, Elder Mediation may be time consuming and complex.  Often, due to complexity of the issues and numbers of the parties, several meetings are required and two mediators may need to be involved.  Yet, consider the cost of doing nothing:  lack of care or illness or accidents on the part of a vulnerable loved one, lack of family support for a caregiver, financial exploitation, loss of a business or livelihood due to failure to plan for contingencies, distrust, failure to communicate, incorrect assumptions, escalating conflict, anger, and financial resources poured into attorneys and lawsuits.  The stakes are high.  Errors can cost not just money, but also relationships in the family and quality of life for the Elder.

A family can pretend nothing is wrong and “fake” peace, or it can sue each other and “break” the peace.  Or, it can deal honestly and fairly with the issues and truly, “make” peace.  The middle way – the way which acknowledges conflict and then works through it it in an effort to find authentic peace — is, by far, the best way.

Additional Resources

Association for Conflict Resolution, Section on Elder Decisions and Conflict Resolution: http://www.mediate.com/acrelder/pg16.cfm

The author with her grandmother

Elder Mediation Helps Families

A recent article in the New York Times (click HERE for full story) tells the story of a family who got help from an Elder Mediator with a distressing family situation.

An elderly client was calling her caregiver in the middle of the night and making unreasonable demands.  The caregiver was close to quitting her job.  At a family meeting facilitated by attorney and elder mediator Joy Rosenthal, the family discussed the issues and needs of various people affected, including the elderly person and the caregiver.  Then, the group came up with a list of things they could to to make the situation more manageable for everyone.

There are a couple of things I love about this story.

For one thing, it makes it clear that Elder Mediation is helpful in many cases that would not call for court action.  The issue of calling a caregiver in the middle of the night was not the type of thing that people go to court for.   Yes, it is true:  mediation is appropriate for situations involving very serious issues that could legitimately be taken to court.  But mediation is not limited to these types of situations.  It can be helpful at every level of conflict.  Indeed, the earlier a family calls in a mediator, the better.

When the family calls a mediator at the first sign of distress, the mediator can intervene before the family has become polarized and estranged from one another.   (In cases where family appears headed for court, early intervention by a mediator may save not only relationships but tens of thousands of dollars in legal fees and court costs.)  Additonally, mediation enables families to consider options that would never be available in a court of law.  In this case, the family was able to intervene before the caregiver quit, and mediation enabled them to work together to forge a creative, win-win solution.  The result?  The elderly client was happier, everyone had a better understanding of each other, the caregiver was able to to keep her job and work more reasonable hours, and the elderly client was able to retain a trusted employee.   Even more important, the air was cleared, people understood each other better, and a better foundation was laid for future decision making.

Another thing I like about the story is the simplicity of the solution and the way the solution met the true needs of all the parties.  (To learn the exact problem and solution, read the story!)   As this story illustrates, sometimes the solution is very simple, and all it takes  is to talk it through.

As simple as the solution sounds, however, I’m certain it was worthwhile to engage the mediator.   A qualified elder mediator isn’t just a person who has decided to act as a middle man and “keep the peace”.  A mediator, if properly qualified as an Elder Mediator, is a seasoned professional with advanced training not only in basic mediation skills, but also in mediation of large and complex family issues, and they will have specific training or expertise in elder and geriatric issues.    The mediator will know how to set the stage and manage a meeting in such a way as to ensure that all family members are heard and all interests are on the table before  options or solutions are considered to address those needs.  The integrity of the mediation process is what ensures that once a solution is in place, it is a good solution that does meet all needs, and not just a knee-jerk, slap-a-bandage reaction.   Indeed, that is one of the best values that mediation offers.    By going through the steps in a methodical way, as led by a expert in conflict management, families who choose mediation actually address root causes.  Conflict addressed in this way offers opportunity for families to develop better systems of communicating and making decisions, and thereby have the opportunity to achieve authentic healing and reconciliation.    It’s virtually  a no-lose proposition.

To find a mediator in your area, search through mediators listed on the web site Mediate.com, or search specifically for an elder mediator on the site ElderCareMediators.com  .   I’ve also written a guide to choosing an elder mediator, which can be accessed HERE.

Skinner with her own grandmother

(My own background that prepares me as an Elder Mediator includes approximately 160 hours of study of mediation techniques (including specific study with Zena Zumeta and Susan Butterwick in mediation of Elder issues and contested guardianship cases and study with Richard Blackburn in conflict transformation in large group settings), personal study in elder law, personal experience in elder care management, and graduate level study in medical ethics.  I am a member of the Elder Decisions section of the Association of Conflict Resolution, and I am listed on both of the above sites in the field of Elder Mediation.)

An Introduction to Elder Mediation, or Mediation in Elder Law Cases

Are you concerned about conflict in your family, or a potential conflict, that involves an elderly person, changes related to aging and increased vulnerability, or administration of a probate estate?  If so, your family may benefit from Elder Mediation.  Elder Mediation offers the same benefits as other mediation:  it is private, it keeps your family in control of its own decisions, it is voluntary, and it can be a very effective form of conflict resolution.  There are other factors which make Elder Mediation very different from other types of mediation.

Elder mediation is distinguished from other forms of mediation by the types of issues involved.  There are three recurring types of issues that tend to come up: (1) resolving differences about planning for future financial or care scenarios, including estate planning, business succession planning, and advance care planning; (2) helping to achieve family agreement during a crisis, such as when an Elder has fallen and decisions must be made quickly; and (3) mediation to settle disputes over estate matters.

In addition to being distinguished by types of issues involved, Elder Mediation is also distinguished by its complexity.  Conflicts are likely to involve complex legal and financial issues, multiple stakeholders, entrenched family dynamics, emotional challenges, and a vulnerable adult.  Elder mediation helps embattled family relationships overcome these challenges in two ways.  First, communication is controlled so that negative feelings can be expressed in ways that don’t damage relationships.  Second, the mediation process facilitates real communication and enables parties to address the core interests that are causing conflict.  The aged adult will also be included in discussions and in decisions to the fullest extent possible, taking into account their capacity to make decisions.

Attorneys, accountants, and elder care managers are usually the first ones consulted by a family seeking proactive help.  No matter how much expertise these professionals have, they can’t do their jobs effectively when divided families can’t agree on goals or when all concerns are not brought forward.  And, just one family member who disagrees with the goal can destabilize the most extensive planning and cause tens of thousands of dollars to be expended to defend a lawsuit.  This is where an Elder Mediator adds key value.  A neutral mediator can help the parties ensure that complex, preventive planning and care management takes into account all interests, is realistic, and is based on a unified family agreement.  When these measures are taken, there is much less likelihood of later challenge.

Sometimes the barriers to agreement can be profound.  Siblings may vie for favor, tempers may flare; distrust builds, and relationships suffer.  In emotionally volatile situations, the family needs a skilled, neutral party to help the family put aside old patterns of interacting and adopt new patterns, in order to the serious issues that every aging family will go through.  While a mediator is not a counselor, ideally an Elder Mediator will assist the family in overcoming old patterns of relating that are no longer working, so that the family can come together in a more unified way to confront the new or impending reality.

A family navigating the path of caring for an elder may also encounter unforeseen obstacles.  Sometimes, there may have been some condition which has been so much a part of the family’s life that it isn’t even noticed until something else goes awry.  For example, suppose one of the adult children has mental or physical disability.  That child may have been able to function by living at home or receiving substantial help from the parent.  As the parent ages and becomes less able to “take care of” that person, other family members may become more acutely aware that something doesn’t seem right.  Perhaps the issue is alcoholism, mental illness, or perhaps there is suspicion of financial misdeeds.  Unfortunately, sometimes adult siblings may have be forced to address these difficult issues at the same time they are having emotional and difficult conversations with or about their aging parent.  These times of crisis are challenging for families.  The presence of a neutral mediator can help keep the conversation on track.

Another  challenge of Elder Mediation is that various family members may have vastly different perspectives and ideas about what solutions to various challenges ought to be.  Sometimes what a parent wants is not what the same as what their adult child would want, and different members of the family may all want or expect different things.  Conversations can be difficult, and siblings may be forced to interact with one another under the rules of family system they left behind.  The CEO of a corporation may find himself being placed in the role of “little brother” or the sister’s concerns may be dismissed as too “selfish”.  The Mediator may need to assist these siblings not only in stepping outside their childhood roles and stereotypes, but also to encourage each to consult outside sources for a “reality check” concerning the veracity of their viewpoints.

Xan with Papa Bill

Families benefit from communication

These are just a few of the issues!  Ideally, an Elder Mediator will have flexibility, training, and intelligence to respond nimbly to challenges of each unique situation.

In selecting an Elder Mediator, seek a well seasoned mediator who has special skill and training specifically in Elder Mediation.  The mediator hopefully can tell you the name of a training institute where they studied this specialized form of mediation.  The person should have expertise in (1) legal and financial issues of aging (financial planning, care planning, business succession planning, guardianship or probate administration), (2) multi-party, complex mediation (siblings, in-laws, and grandchildren all may be stakeholders and necessary parties to a mediation), and (3) evaluation for competency and capacity, taking special precaution to ensure that the aged person, who may be a vulnerable adult, is accorded as much autonomy and decision making deference as his or her physical and mental capacity will allow.

Last but not least, a good Elder Mediator will run a tight ship.  When emotions get stormy, the seas can get choppy.  A good Elder Mediator will calm the waters by keeping the conversation focused and civil.  For it is only through listening to one another that a family can hear each other’s concerns, develop solutions that address those concerns, and come up with the best solution to address the needs not only of the aging adult, but of their caregivers and loved ones as well.

As difficult and challenging as conversations about Elder issues may be, wise is the family that has them.  While honesty, candor, and open conversation may be challenging and difficult, the more fully the issues are discussed, and the better the quality of conversation, the better the result will be.  Yes, Elder Mediation may be time consuming and complex.  Often, due to complexity of the issues and numbers of the parties, several meetings are required and two mediators may need to be involved.  Yet, consider the cost of doing nothing:  lack of care or illness or accidents on the part of a vulnerable loved one, lack of family support for a caregiver, financial exploitation, loss of a business or livelihood due to failure to plan for contingencies, distrust, failure to communicate, incorrect assumptions, escalating conflict, anger, and financial resources poured into attorneys and lawsuits.

A family can pretend nothing is wrong and “fake” peace, or it can sue each other and “break” the peace.  Or, it can deal honestly and fairly with the issues and truly, “make” peace.  The middle way – the way which acknowledges conflict and then works through it it in an effort to find authentic peace — is, by far, the best way.

Additional Resources

Association for Conflict Resolution, Section on Elder Decisions and Conflict Resolution, click HERE

A page on my site with links to other articles about Elder Mediation, click HERE

Elder Mediation Links

The act of coming together was a kind of a bonding experience . . . . We realized we really could work through a lot of decisions and challenges.”  (Sarah Burrows, quoted in article Elder Care Choices Revive Sibling Fights, linked below)

The following articles and resources are intended to be helpful for people wanting to learn more about Elder mediation.

Center for Social Gerontology, a “think tank” with many resources related to aging, click HERE

Careful planning helps secure a better future

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Elder Mediation

Whether you are an elder, or the adult child of an elderly person, mediation can help with family stress.  Read More

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