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Mediation could benefit familes with aging parents

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When siblings can’t see eye-to-eye about how to care for their aging parents, families sometimes end up settling disputes in courtrooms. But elder care mediation can help families resolve conflicts before they become matters for litigation, if only more people knew about and used this option.

Janet Mitchell, a Fort Wayne attorney who specializes in elder care mediation, says the public and members of the legal profession seem generally unaware of the existence of elder care mediation. She is working to educate the public and fellow attorneys about how the process can be used to help families.

hoeller-mary-mug.jpg Hoeller

“The reason I do this is that my father is 99 and is in very good health. I want to honor elders and their families, and to me, the best way to honor elders is to get their families to be a unit,” she said.

Resolving disputes

Mary J. Hoeller – an Indianapolis attorney, mediator and registered nurse – said she often sees court cases involving probate or guardianship that could have been resolved through mediation.

“You would not believe the number of issues that arise in families that could be worked out or should’ve been worked out,” she said.

Mediators can help families determine what level of care is needed for aging parents, how to divide property and any number of associated issues. Guardianship, in particular, is often a source of tension among siblings trying to agree upon the best plan for aging parents, Hoeller said.

“I think guardianship is a huge issue. I think there’s always a struggle among family members as to whether or not the person needs a guardian, who that guardian should be and how that guardian should behave,” she said.

In Indiana, no rules exist defining the limits of a guardian’s power over a ward, and rifts may arise when a guardian – who is often an adult child – makes decisions that seem counter to a parent’s or a family’s wishes.

The National Guardianship Association Standards of Practice state that guardians should either make decisions based on the ward’s past decisions – a practice known as substituted judgment – or based on what would be in the best interest of the ward, Hoeller said.

“We have wards who, in fact, make a lot of decisions for themselves, but we find guardians who are unwilling to accept and take on the role of substituted judgment,” Hoeller said. “Simply because someone’s under guardianship doesn’t mean they don’t have a say in things.”

Hoeller said family members who serve as guardians usually do honor the wishes of the parent, but they sometimes overstep their bounds by forbidding certain people from seeing the ward or making other choices that are counter to the ward’s well being. One of her roles as a mediator is to educate people about what a guardian should do, she explained.

mitchell-janet-mug.jpg Mitchell

Guardians may either be assigned to oversee a person or an estate, Hoeller said, and she’s increasingly looking for third-party fiduciaries who can take over an estate’s financial administration.

“Sometimes, we have resolved these matters by allowing the family members to be the guardian of the person but taking away their capacity to manage the money,” Hoeller said. “That way, siblings are just focusing on care of the parent and not worried about what they can get out of them.”

Respecting wishes

Mitchell said that she prefers to have the parent or ward present for mediation. That may mean the mediation should be scheduled at a specific time of day – the time when the parent or grandparent is most alert. She begins the mediation by asking the elder relative what his or her wishes are.

“They usually say the same thing – I don’t care what decision you make, I just want all you kids to get along. I want there to be a family after I die,” Mitchell said.

Historically, care of the eldest family member usually was the responsibility of the sibling closest geographically, Mitchell explained. But now, with the ability to conduct a variety of business online including paying bills and handling other matters, the closest sibling may not necessarily be the one who’s handling affairs for the parent.

“It isn’t like the old days where one child takes care of everything and gets the house,” she said.

But the children who see the parents most often may have a better understanding of an aging parent’s limitations.

“The children who have had more access to parents … may know how much care the parents need, and a child in Alaska may not,” she said.

Explaining the disconnect

Attorneys who are trained in elder care mediation aren’t seeing a big demand for those specific services, even though mediation is much less costly and contentious than litigation.

Renee Bloom, of the Fort Wayne firm Burt Blee Dixon Sutton & Bloom, handles probate, estate and elder law cases and recently finished her training to become an elder care mediator. She said if families approach her about elder care disagreements, she will need to be mindful of how she handles their issues.

bloom-renee-mug.jpg Bloom

“Probably, if they come to me as a lawyer, I won’t be able to wear both hats. I would rather they come to me as a mediator,” she said. “I think that it would help the family dynamics to be able to come to an agreed-upon solution, instead of fighting. Being in the courtroom is so litigious, and it always feels like one person wins and one person loses.”

Bloom said that one reason family members may not know about elder care mediation is that no one orders them to attempt to tackle these problems outside of court.

“Definitely, in civil and family cases, it’s court-mandated, so they’re forced to seek out a mediator to solve their dispute. Whereas in elder care issues, you don’t have that same mandate,” Bloom said.

Mitchell said that even though elder care mediation isn’t growing as quickly as she would like, she’s already seeing the positive outcomes.

“The best part about this is when I get a call a year later – let’s say it’s Thanksgiving or whatever – and (they) say this is the best family get-together we’ve ever had, thank you for helping us,” she said.•

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  • National List of Elder Mediators
    For a list of 120 Elder Mediators in the US, go to www.EldercareMediators. com. Articles, videos, books, and elder mediation training are listed, including Indy and Fort Wayne CME seminars in December.

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  1. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  2. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  3. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  4. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  5. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

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