A 2014 report of the Alzheimer’s’ Association has 90 pages of facts and figures to document the increasing prevalence of Alzheimer’s disease and other causes of dementia. One in nine Americans over age 65 has Alzheimer’s disease, which causes somewhere in the range of 60 to 80 percent of all dementia. The benefit of mediation to resolve family disagreements among siblings about the best interests of affected parents is increasingly recognized.
When a loved one suffers from dementia, behavior changes often create frightening and dangerous circumstances. Unsafe driving, confusions about medications, uncharacteristic emotional or physical spousal abuse, or wandering away from home are not unusual occurrences. Legitimate safety concerns arise, both for the individual suffering with the dementia as well as for caregivers and others who could be affected. Change can be legally complicated and emotionally difficult.
If family members are unable or unwilling to make lifestyle changes to manage the behaviors that arise from dementia, at a certain point the police and Office of Aging sometimes get involved. When an older person becomes such a responsibility for a public agency, a guardianship action often results. This can lead to involuntary placement in a licensed, and secure, long term care facility, which might not be the family’s preferred option. Sometimes the threat of such outside intervention is enough to get family members focused on the need to make tough decisions.
When family disagreements are played out in court proceedings, a judge must decide who would be the better guardian for a parent who is no longer able to act independently. The need for a guardianship appointment is most common when an adult with dementia had failed, when they were competent, to execute a power of attorney document to appoint an agent to act for them. A guardianship can also be necessary if no backup agent was appointed to succeed the only appointed agent whose status changes and who becomes unable to serve in the role.
Senate Bill 568 was recently proposed as legislation which would amend Title 20 of the Pennsylvania Consolidated Statures to make a number of changes to the way guardianship matters are managed by Orphans Courts in Pennsylvania. The proposed legislation introduces the terms arbitration and mediation for the first time as codified options in relation to a guardianship process. However, elder mediation has existed for many years in some localities.
The Good Shepherd Mediation Program of Philadelphia was established in 1984 and offers both mediation services for families, as well as training for professionals interested in providing elder mediation services. Typical elder mediation issues include living arrangements, driving, property maintenance, care issues, and finances. Depending on the circumstances of a family conflict, a mediation session might include three generations of a family, religious advisors, friends, neighbors, service providers, and financial and legal advisors.
Mediation is different than arbitration, in which a neutral party or panel hears a dispute between parties and renders an opinion that could have legal significance. Mediation is a dispute resolution process which participants must approach voluntarily and work through in good faith. A successful mediation hears the wishes of the older adult, and encourages family members to work through their different perspectives. Ideally, a mutually agreeable resolution about a necessary decision results from the process of gathering information and considering options.
Some mediators suspend judgment and serve reflectively as facilitators. Other mediators are directive to arrange a resolution. Sometimes predicting what result might occur if a dispute would proceed to litigation can motivate parties to reach agreement. A mediator might need to help a family work through sibling rivalries, and minimize the current relevance of previous family conflicts and pain.
Decisions about older persons with dementia are difficult. When one spouse seems to equate self-worth with the ability to be a caregiver of the other, this can translate to a denial of a need for change. Sometimes a child who has not been present to observe the decline of a parent with dementia has difficulty processing the significance of their parent’s decline as reported by a sibling. Mediation can be useful to resolve emotional disagreements about dementia so these do not get so personal as to create hard feelings which can permanently divide families.
Circumstances of dementia can create additional stress when family members’ disagreement results in tensions that cause relationships to suffer. These tensions, general logistics, and time pressures lead to families avoiding important and difficult conversations. Not discussing the impact of dementia contributes to a failure to recognize or react to the new reality caused by progressive dementia, and delays important decisions. At least one of the parents might eventually lack the capacity to participate in decision-making about care.
If your family is experiencing the onset of dementia, it is important to attempt to get legal affairs in order immediately. If a consensus cannot be reached about the need to appoint an agent or who should be appointed, mediation might be useful to resolve this impasse. Even if the preparation of legal documents can be completed without mediation, mediation of lifestyle issues could be beneficial.
by David D. Nesbit, Attorney