Fall 2010-#5. Eldercare and Adult Guardianship Mediation.

Authorby Neal Radar (with Hon. Judge Susan L. Fowler)

Vermont Bar Journal


Fall 2010-#5.

Eldercare and Adult Guardianship Mediation

THE VERMONT BAR JOURNALVolume 36, No. 3Fall 2010Eldercare and Adult Guardianship Mediationby Neal Radar (with Hon. Judge Susan L. Fowler)Eldercare mediation is a decision making process available to families facing difficult choices regarding an aging parent or loved one. Seniors are living longer than ever before. As they age, important plans often need to be made, including: where they are going to live; how financial affairs should be managed and by whom; what kind of medical care is appropriate; and whether or not they should continue to drive. Making these determinations usually requires troublesome conversations within a family. Such discussions can lead to profound conflicts that must be resolved before the elderly loved one can be assured of a safe and comfortable environment in which to live out their days.

When faced with these hard eldercare choices, families often turn to attorneys for help in understanding the legal issues and for support in the court proceedings. While attorneys are highly skilled and in some cases absolutely indispensable in bringing a matter to closure, they are legally bound to represent aligned interests and cannot ethically serve conflicting positions. The shifting and lifelong dynamics that come into play when dealing with an elderly member of a family are not always well-suited to adversarial courtroom proceedings. Issues that arise in family planning may create great emotional intensity, and disparity among formerly loving individuals can grow swiftly and leave devastating results in its wake. Susan Butterwick, directing attorney for Care Giver Mediation Projects for the Center for Social Gerontology writes, "This is one of the most difficult dilemmas our society, families, care givers, and elders face. Families often find themselves on opposing sides in a courtroom involved in contested litigation over how best to care for a loved one."

Attorneys are in an excellent position to refer families to eldercare mediation, and such referrals need not terminate the ongoing need for legal counsel. Depending upon the needs of the family, an attorney may be present during the mediation sessions as an advocate, or available between sessions to provide information and support. It is also common for attorneys to play a role in drafting final agreements and submitting them to the court. Where court proceedings are necessary for the appointment of a legal guardian, an attorney may assist the family at the hearings after the contested issues have been resolved...

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