June 01, 2017

Dispute-Resolution Tactics Emerge to Aid the Elderly

By Karen Campbell

Eldercaring coordination and other tools are helping families and legal professionals better manage today’s challenges.

When it’s the elderly who’ve fallen into the grip of opioid dependency, the route to recovery is complicated for both the individual suffering from the cloud of opioid use and those who love and care for that person.

However, strategies and tools are being developed to help families handle the broad range of challenges that arise as their loved ones age. They may be useful in combating opioid dependency issues, too.

A crisis after routine hip surgery

The effects of opioid dependency in older adults can affect their functional capacity and, in some instances, could result in the loss of their civil rights. When opioid use causes confusion and depression, older adults may become unable to care for themselves or their property. Not being able to care for yourself or your property can land someone in guardianship court.

Consider this scenario: A 79-year-old woman, whom we’ll call Mom, fell and required hip surgery. The doctor prescribes Oxycodcone for her to take at home after the surgery. Mom takes it for the first week after surgery, and as the pain persists, her use of the opioid continues.

Mom becomes more sedentary, more isolated, and less able to resume her normal activities. Months later, her daughter visits and finds Mom confused and disoriented, the house in disarray, bills unpaid, and Mom still on the pain meds.

Her daughter asks Mom to move in with her, but Mom vehemently refuses to leave her home and refuses to have someone come into the home to provide assistance. Her daughter tries to make arrangements to pay the bills, but the bank won’t give the daughter any information, and Mom won’t voluntarily provide it.

In addition to seeking medical attention and perhaps assistance in the home for Mom, the daughter may also seek legal advice on how these important decisions can be made even though Mom isn’t cooperating.

Traditionally, the legal options available to family members like this daughter have included becoming Mom’s agent under a power of attorney or making joint banking arrangements. But these options require Mom’s cooperation and consent.

Guardianship has its limits

Guardianship is another legal option, but it requires removing Mom’s civil rights and potentially creating an adversarial legal fight.

Guardianship has been a common solution for families with good intentions. Families want to help, and they want to intervene in the situation in a way that solves the problem. And sometimes, they think if they can just get control of the situation, they can help Mom or Dad.

But when drug dependency is the root of the problem, guardianship addresses only the symptoms and may not help. There are limitations to the use of guardianship where substance abuse is the underlying cause of functional incapacity.

In some states, a guardian can’t force substance abuse treatment or involuntarily admit someone into a facility. Moreover, forced treatment isn’t the goal. Cooperation in seeking appropriate help is the goal. Guardianship can actually be a barrier to obtaining an older person’s cooperation if the older person has strong objections to the imposition of the guardianship.

New solutions are emerging

Increasingly, there are efforts to reduce the number of guardianships among older persons and to employ strategies that don’t require the loss of civil rights and the restriction of autonomy and independence. The ABA has developed PRACTICAL, a screening tool you can use when you’re determining whether guardianship alternatives are appropriate in a particular case.

New legal strategies are also being developed to aid families that need conflict resolution. Two such options are supported decision making and eldercaring coordination. These additional tools or strategies can be used to foster cooperation.

Supported decision making is an alternative to guardianship where supporters aid the person needing decision-making assistance by helping that person evaluate options and make reasonable decisions. The person gets the help needed while maintaining independence and autonomy.

Supporters can be any trusted person invited by the person to help in the decision-making process, such as family, friends, or advocates. For more information about supported decision-making, visit the National Resource Center for Supported Decision-Making.

Coordination is becoming key

Another promising strategy to aid conflict resolution is eldercaring coordination. Lisa Fieldstone and Judge Michelle Morley from Florida patterned the eldercaring coordination concept after parenting coordination.

“It’s time for court processes to treat elders and their families humanely and with the same dignity and options for resolution provided to families with younger children,” explained Fieldstone.

Eldercaring coordination guidelines were developed by the Association of Conflict Resolution, which defined the concept as, “A dispute resolution process during which an eldercaring coordinator assists elders, legally authorized decision makers, and others who participate by court order or invitation to resolve disputes with high conflict levels that impact the elder’s autonomy and safety.”

Morley described the purpose of eldercaring coordination: “Eldercaring coordination is being developed not necessarily to install or restore family harmony, although that’s a very gratifying outcome,” she said. “It was developed to take the family’s focus away from the conflict among them and redirect their focus to the care and safety of their elder loved one.

“When the court’s calendar is being dominated by lengthy, antagonistic hearings over matters that aren’t guided by the law, e.g., whether an elder should be cared for at home or placed in a care facility, whether certain family members should be allowed to visit the elder, etc.,” she added, “eldercaring coordination can be the silver bullet the court is looking for as an effective and long-term alternative.”

There are 14 jurisdictions in 5 states currently implementing eldercaring projects. Pamela Teaster and Megan Dolbin-MacNab, professors at Virginia Tech’s Center for Gerontology, are evaluating the effectiveness of these pilot projects.

“From preliminary data on the project, the elders are using a variety of services but continue to have ongoing service and caregiving needs,” noted Teaster. “Eldercaring coordinators work to have a nuanced understanding of elders’ needs and manage complex family dynamics to effectively tailor care coordination.”

Morley added: “One family overcame the conflict that was driving them apart and delaying decisions over the care of their elder loved one,” she said. “When their elder passed, they were all able to be with the elder to say goodbye. They supported and comforted one another over their loss. The family actually asked the eldercaring coordinator to extend her appointment so that she could help them to be mindful of the elder’s wishes.”

For more information about eldercaring coordination or how to start a pilot project in your area, visit www.eldercaringcoordinationfl.org.

Although supported decision-making and eldercaring coordination aren’t necessarily designed for specific use in cases involving substance abuse by older adults, the key features of these conflict-resolution strategies should be helpful for families.

If used appropriately, these strategies can help diffuse family conflicts and provide decision-making assistance that preserves independence and autonomy while protecting the well-being and property of the older person. Use these strategies creatively when you’re addressing the needs of your older clients, and encourage families to actively pursue these options when they’re available.

How Eldercaring Coordination Can Help

A new dispute resolution process called eldercaring coordination involves bringing in a specialist to help elders, their legally authorized decision makers, and others to resolve high-conflict disputes that affect the elder person’s autonomy and safety.

Suitable cases for eldercaring coordination include disputes that continue over a period of time or that could benefit from a facilitator who can be more involved in guiding families toward a solution. The eldercaring coordination process:

  • Begins with a court order, initiated by the court or the parties, referring the matter to an eldercaring coordinator
  • Involves the EC inviting to the table all parties who have an interest or role in bringing the conflict to resolution, including therapists, care providers, and others who ordinarily wouldn’t be involved in the court proceedings or traditional mediation
  • Includes the EC facilitating discussions, evaluating options, referring to outside sources when necessary, and developing plans to build consensus and reach resolution

This process can be repeated until consensus is reached and conflicts resolved. ECs, unlike mediators, can become actively involved in the decisions made by the family. Courts can give them authority to make limited decisions on the older person’s behalf.

The guidelines specify that ECs must meet particular qualifications, including masters’ level degrees and specialized eldercaring coordination training. Specially trained ECs are key to the success of the eldercaring coordination process.

Karen Campbell

Karen Campbell is an attorney and the executive director of the North Florida Office of Public Guardian Inc. in Tallahassee.