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May 23, 2023 6 minutes to read ∙ 1400 words

Elder Care Planning Mediation

By Linda F. Spiegel

Reprinted with permission from Voice of Experience, January 2023. ©2023 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

When we are young, our parents take care of us. As our parents age, they may need us to take care of them. It may be very difficult for our parents to have that discussion with us. They don't want to impose. They are not accustomed to discussing their financial situation with us, their children, no matter what age we are, what professional recognition we've obtained, or our area of expertise. No one in the family may be comfortable raising the issue of long-term care and end of life decisions.

As you watch your loved ones grow older, you should try to discuss their plans with them in the event they can no longer care for themselves without assistance. This discussion can at times be very difficult, either because you and other caring relatives find it hard to discuss end of life issues with your elderly relatives, or your elderly relatives don't want to acknowledge or don't realize that they may need assistance. Sometimes the discussion is difficult because elderly parents don't want to appear to favor one child over the other and want all of their children present for the discussion.

How do you know when it is time to have this discussion? Having just spent time with your family for the holidays, you may have noticed some of the signs that should have alerted you that your elderly relatives, including your parents, aunts, uncles, etc., may need some additional care. Some of these signs include piles of correspondence, bills, etc. that have not been attended to, lack of attention to personal hygiene, or lack of cleanliness in their home.

As of 2015, about 40 million Americans are helping at least one parent and one out of every four households is involved in some kind of elder care, according to the Pew Foundation.

Your level of concern should focus on what is called "Activities of Daily Living," also known as ADLs. Does the elder need assistance with ADLs? These include getting in or out of a bed or a chair, toilet hygiene, bathing or showering, getting dressed, personal hygiene, eating, walking, climbing stairs, and responses to their own safety and emergency situations, such as knowing when to call for assistance, take medications, or call a physician.

Elder care planning mediation is "all mediation in which participants address issues that occur as a result of life cycle events, transitions, and/or losses often associated with aging and dying." (Association for Conflict Resolution Section on Elder Decision-Making and Conflict Resolution Committee on Training Standards, 2012)

In the mediation, the participants meet with a mediator who facilitates the discussion by creating a space where participants listen to each other, ensuring that the voices of the elders are heard and respected, finding out what is most important to each person participating, and ultimately helping the family explore options and reaching decisions to which everyone can commit. Having a professional mediator involved will lessen the stress and tension among those present. Depending on the specifics of the situation, the mediator may suggest that a geriatric care manager and/or an elder law attorney participate in the mediation as well.

The discussions may include medical issues, legal issues, financial concerns, your loved ones' living situation, caregiving, the plan for your loved ones' futures, the allocation of responsibilities among those present in regard to the elders, and other concerns. Mediators can also develop a process for revisiting decisions as the needs of the elder changes or the situations of those assisting the elder changes.

"What is most difficult, I think, are the situations in which family members cannot agree with one another and they argue about everything from course of treatment to choices that may impact their loved one's comfort. It happens more often than you would think and, perhaps, more often than it should."(, by Carol Silver Elliott, President and CEO of The Jewish Home Family)

The decisions that must be made – including financial, residential, and health-related decisions – tend to create conflict within some families, or to exacerbate existing conflict, due to the stress that accompanies these decisions. If the elder has not executed a Power of Attorney appointing an attorney-in-fact, adult siblings oftentimes find themselves in court arguing over decisions for an elder parent. The first lawsuit filed is usually an application for guardianship and, when there is no agreement among family members as to who will be the guardian, this issue is litigated.

Unfortunately, litigation may also ensue when there is an attorney-in-fact or a court-appointed guardian and a family member (or members) disagrees with the decisions of the named representative and looks to the court to remove the attorney-in-fact or guardian. Litigation is a costly process and extremely stressful for all parties. There is usually no winner and most times it causes harm to the elder due to the conflict and stress. Mediation, by providing a safe space for all involved, reduces the stress and creates an environment of cooperation rather than encouraging adversarial behavior.

Erica Wood, the retired former Assistant Director of the American Bar Association Commission on Law and Aging, noted that once families have the opportunity to discuss elder care in mediation and are informed of community resources, "the resulting solutions can be more creative and better tailored to individual needs than a court proceeding, and parties are likely to adhere better to solutions they have designed themselves."

What happens once you decide to proceed with Elder Care Planning Mediation?

In Elder Care Planning Mediation intake and pre-mediation conferences are very important. It is also important that all necessary persons are included in the mediation. The mediator will explore in the initial intake interview with the person contacting the mediator who these persons are and discuss whether or not they are willing to participate. The mediator should inquire as to the existence of a Power of Attorney for Banking and Property Management, Power of Attorney for Healthcare Decisions, and Advanced Directives/Living Wills executed by the elder. The mediator should also inquire if there are any court orders or judgments addressing the capacity of the elder and appointing a conservator and/or a guardian. The mediator should obtain copies of all such legal documents. The mediator will also discuss the setting for the mediation, whether it will be in-person, telephonic, or virtual.

Another area of discussion is what accommodations are needed to be made for the participants and the length of each mediation session. I have found that one hour or one and a half hours is the optimal length for a mediation session because it is difficult for participants to concentrate and absorb all that is being discussed in a more lengthy session. However, if you are meeting in person and there is a substantial travel time involved for one or more participants, the session can be expanded to accommodate that situation. If travel time is an issue, having virtual mediation sessions should be considered.

It is important for the mediator to meet with the elder individually, without anyone else present, to screen for elder abuse, assess the capacity of the elder, and ascertain the elder's ability and desire to participate in the mediation. This screening should take place before the first mediation session. If the mediator is concerned that elder abuse is an issue, the mediator should comply with reporting requirements in the mediator's state.

In the initial mediation session, it will be important for the mediator to listen to all those present voice their concerns for the elder, to observe their interactions with each other, and to learn the needs of the elder. The initial mediation session may or may not include the elder depending on each situation and the mediator will make that recommendation based on the mediator's meeting with the elder and the pre-mediation conferences.

Many mediation participants come to the mediation with limited or no knowledge of the resources available to elders in their community. Elder Care Planning Mediation should include a discussion of available resources and how participants may get the specialized information they need to make and carry out informed decisions. As stated earlier, a geriatric case manager may be included in the mediation as a resource person.

Having just been together for the holidays, please look back at your time with your family and ask yourself if now is the time to become involved? If the answer is yes, please reach out to an elder care planning mediator to start the discussion.

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Linda F. Spiegel

Spiegel Law Firm

Ms. Spiegel is a New Jersey State Court–approved R. 1:40 Arbitrator and Mediator in family and civil matters. She serves as a mediator and arbitrator for the American Arbitration Association. In her private practice, Ms. Spiegel mediates all types of family matters including elder care issues. She has been a presenter in continuing legal education to bar associations as well as a speaker at the Bergen County peer group of the New Jersey Association of Professional Mediators (NJAPM). Ms. Spiegel currently serves on the board of NJAPM and was recently elected to the Executive Committee of the Justice Marie L. Garibaldi American Inn of Court for Alternative Dispute Resolution.

Originally published in Voice of Experience, January 2023; reprinted in GPSolo eReport, Volume 12, Number 10, May 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association Senior Lawyers Division or Solo, Small Firm and General Practice Division.