The process of family facilitation involves working with families to positively resolve the issues surrounding aging, death and dying and other matters faced by the elderly population. The goal of family facilitation is to intervene early in the process, thereby avoiding permanent schisms, often generational, between parents, children, step-parents, step-children, siblings and other family members. The issues facing the aging or disabled and their families can be daunting. An example is a sudden illness or medical incident that raises numerous critical issues. Another example is the family disharmony that often occurs with respect to the preparation and content of the elder’s estate planning documents. Often, parents fear facing illness or death and are unable to talk with their adult children about end-of-life issues. Conversely, they may fear upsetting their children due to a particular choice of agent under power of attorney or personal representative under a will. The same holds true for adult children, who frequently cannot face the reality of their parents’ eventual demise. Another example involves placement issues. Can the elder stay at home? Is assisted living or a nursing home placement more appropriate? In these types of cases, a family facilitator can assist families with these difficult issues, thereby easing what can become very difficult and devisive matters. In the family facilitation process, the facilitator meets or speaks by telephone with all of the parties to understand their concerns and goals. Usually, this conversation is separate and independent. It is not unusual to hold a second round of discussions. The facilitator then typically meets with the parties together (one or more may have to participate by telephone) to talk through the issues and to seek common ground among them. The ultimate goal of family facilitation is to reach a consensus among all parties involved.
- Mediation, Arbitration and Alternative Dispute Resolution
Once an issue involving an intergenerational family dispute has progressed to the point that family facilitation is ineffective, more traditional forms of alternative dispute resolution may be required in an effort to resolve conflict. This can occur prior to a case being filed or after litigation has been begun.
There are several forms of mediation and alternative dispute resolution. The following discussion represents a general description of each but is not an exhaustive list. Variations often will occur.
• Evaluative mediation is a process in which the parties are involved in a legal dispute and, typically, are represented by attorneys. Often, the mediator meets with the parties and their attorneys together, then places them in separate rooms and engages in "shuttle diplomacy," going back and forth between each side. The mediator typically advises the parties of the pros and cons of their legal positions and suggests what a judge or jury might do if the case were to go to trial. The mediator also helps the parties to understand the cost benefit analysis of settlement versus trial, and often urges the parties to settle. The mediator typically does not take into account the personal and emotional relationships between the parties, nor the maintenance or repair of the parties’ relationships.
• Facilitative mediation is a process in which the mediator helps the parties to reach an agreement that is mutually acceptable and places the elder’s needs first. Typically, this process involves the parties working together, instead of being separated, utilizing separate "caucuses" (temporary separation of the two sides) when necessary. The mediator reframes the issues when the parties become overly defensive, antagonistic or angry. Far less emphasis is placed on evaluating the case from a legal perspective; the focus is on the needs of the parties and reaching a mutually agreeable consensus. Some critics of this method of mediation argue that it fails to emphasize the legal issues, that it does not urge settlement, and that it is too much like therapy.
• Arbitration is a process that is nearly identical to going to court. The arbiter (typically with the same credentials as a mediator), serves in the role of a "judge." The arbiter hears the testimony of all sides, admits or rejects evidence, rules on objections and, at the conclusion, makes a ruling. The parties typically have no role in resolving the case; the decision-making process is taken out of their hands and is determined by the arbiter.
• Combined mediation/arbitration is a process in which the parties first try to mediate their own resolution to the dispute. If they are successful, the case is over. If they are unsuccessful, the matter proceeds to arbitration. At that point, the resolution of the case is taken out of the hands of the parties and an arbiter renders a decision.
Occasionally, this process is done in reverse. The parties first present their case to the arbiter. Following the arbitration, the arbiter does not render an opinion. Instead, the parties first attempt to mediate their own resolution to the dispute. If they are unsuccessful, the arbiter announces the decision.
Typical examples of issues that result in mediation or arbitration include the following:
A common scenario involves a family fighting over who will have control over an incapacitated person and his or her funds. This dispute frequently leads to a guardianship and conservatorship action, in which a judge determines who will make decisions on behalf of the incapacitated person. These cases can be brutal and expensive and can result in the elder’s funds being spent to fund the litigation. Rarely is anyone satisfied with the results of the litigation.
A second scenario which often results in the filing of a court action involves matters in which there is a suspicion of wrong-doing on the part of a family member or a caregiver. Typically these cases contain allegations of abusing and/or neglecting the elder or stealing or misusing the assets.
Finally, once an elder has died, it is not unusual for a dispute to erupt concerning the deceased’s assets. The types of allegations typically include: (1) the elder lacked the capacity to make a will or a trust; (2) someone close to the elder unduly influenced him or her to change the estate plan so that the person receives a greater portion of the estate; or (3) the elder was "blackmailed" into believing that he or she would receive lifetime care, would not be placed in a facility or would live in the home of the wrongdoer if the elder changed his estate plan in favor of the caregiver.
An expert witness provides an opinion concerning a legal issue in a lawsuit based upon her experience, education and training. An expert witness typically reviews documents, writes an expert report and testifies in court. I serve as an expert witness in the following areas: probate, probate litigation, guardianship and conservatorship, representation of fiduciaries, attorney’s fees, elder law, Medicaid and other public benefits, Social Security Disability and Supplemental Security Income, and the role of a guardian ad litem for impaired adults in probate and domestic relations cases.
A special master is appointed by a judge in a pending case. The term “master” includes a referee, an auditor and an examiner. Typically, a master is appointed when there are difficult or complex issues involved.
Guardian ad Litem for Impaired Adults
A guardian ad litem is an attorney, appointed by a judge, to make decisions in the best interest of an impaired adult, typically in a probate or a domestic relations case. The guardian ad litem effectively "steps into the shoes" of the impaired adult and ensures that his or her interests are protected. Often, the impaired adult will be represented by an attorney as well. The attorney determines legal strategy and makes legal recommendations, but cannot make decisions about whether to settle or go to trial, as well as other major decisions. The guardian ad litem works closely with the attorney, often taking the attorney’s advice and making a decision for the impaired adult. If the impaired adult has some capacity, he or she typically will be included in the decision-making process by the guardian ad litem. I have served as a guardian ad litem on numerous occasions.
Advice and Consultation.
Often an attorney, a fiduciary or a lay person needs advice and consultation, or a second opinion, on an issue in the areas of my expertise.
Providing representation in estate planning, probate and general elder law.
I continue to work with clients on the various issues affecting the elderly, the disabled and their families.