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PRESENTATION TO PROBATE JUDGES AND COMMISSIONERS

Mediation-an ADR (alternative dispute resolution) tool for the Probate Court

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INTRODUCTION• Mediation is an ADR (alternative dispute resolution) tool

for the Probate Court that can:• Alleviate some of the administrative burden in

guardianship and conservatorship proceedings• Limit the issues the Court must otherwise decide• Allow all interested parties to have their concerns

addressed• Maintain family relationships

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INTRODUCTION• Evolution of the Power of Attorney

• Under common law agency terminated by loss of capacity

• Durable Power of Attorney Act (1983) and Case Law• Power does not terminate on incapacity or disability

• May continue when there is uncertainty of death• Some powers continue after death

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INTRODUCTION• Probate of a decedent’s estate when there is a last will and testament• Self proving • Independent administration• Small estate affidavit

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INTRODUCTION• Popularity of the living trust• Not just for ‘rich folks’• MUTC• Decanting • Trust Advisors

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INTRODUCTION• Expansion of mediation• Labor and commercial disputes• Personal injury claims and lawsuits• Domestic relations/child custody matters• Trust litigation

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INTRODUCTION• Mediation – A tool to resolve disputes in Guardianship and Conservatorship proceedings

• Reduces the Administrative Burden• An Expeditious Process• Focuses and Eliminates Issues• Maintains Family Relationships

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INTRODUCTION• Mediation is private• Parties fashion a solution• No order is forced on them• Less costly• Court is always an option

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INTRODUCTION• Benefit of a CELA as Mediator• Elder Law - Long Term Care Planning• Retitling and Gifting Assets • The Medical Maze • How to Pay for LTC• MO HealthNet• VA Pension

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Fact Pattern #1• Mom is 88, failing health, lives with son, an active alcoholic• Son has lived with Mom his entire life• Son is only difficult if routine is disturbed• Daughter lives in Australia, has daily contact with Mom

by Skype• Daughter employs family friend to help Mom• Mom faints, ends up in ER, malnourished and

dehydrated and son is inebriated and wild in the ER• ER calls the State, who files for guardianship

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As a Judge in the Probate Court,would you:

• 1. Appoint son as Guardian & Conservator?• 2. Appoint daughter as Guardian & Conservator?• 3. Appoint family friend as Guardian & Conservator?

• 4. Appoint Public Administrator as Guardian & Conservator?

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As Judge, would you:

• 1. Permit Mom to stay in her home with caregiver?

• 2. Require Mom to be placed in a facility?• 3. Permit family friend to continue to be paid to oversee care?

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As Judge, would you:• 1. Permit Mom to allow son to continue to live

in the home rent free?• 2. Permit Mom to give son money for his neighborhood bar activities?

• 3. Supporting son vs. giving son money•Does that create a Medicaid transfer issue should Mom need nursing home care?

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Fact Pattern #2• Dad is 72, has advanced Parkinson’s Disease• Has 2 families:

• A. 2 sons from 1st marriage, ages 47 & 45, both live in Texas

• B. 3 daughters from 2nd marriage, ages 30, 27 & 21, all live locally and his 2nd wife is living

• Little contact between 2 families• Dad left 1st marriage for 2nd wife

• Second wife is totally overwhelmed with care for dad

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Fact Pattern #2…Continued• Sons first time seeing Dad in many years

• Dad works hard to look good for visit and is very social• Son, with take charge personality begins daily e-mails and calls with care requests

• Flared emotions erupt• Son seeks assistance of criminal defense attorney, who files for guardianship

• Wife hires a divorce attorney, who files for guardianship

• Adversary proceedings with large legal costs begins

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As a Judge, would you:

• 1. Set the matter for a contested hearing?• 2. Set the matter for a jury trial?• 3. Require mediation?

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As a Judge, would you:• 1. After a trial, be inclined to appoint wife as

Guardian & Conservator?• 2. After a trial, be inclined to appoint son and

wife as Co-Guardians & Conservators?• 3. After a trial, be inclined to appoint Public

Administrator as Guardian & Conservator?• 4. After a trial, if care is adequate, be inclined to dismiss action, since least restrictive alternative is providing necessary care and support to Dad?

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Fact Pattern #3• Dad is 92, owned a successful business, has significant assets, very proud of business acumen, has progressing dementia

• Dad has 4 children• Oldest daughter and son are financially secure• Other daughter struggles financially• Youngest son is running Dad’s business into the ground

• Dad was an absent parent while the children were growing up

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Fact Pattern #3…Continued• Dad appoints oldest daughter agent under DPOA, DPOA for HC, Successor Trustee of his 4 trusts

• Dad lives at home with around the clock care• Oldest son believes he should be Dad’s fiduciary• Dad’s long time treating physicians state Dad does not have mental capacity

• Oldest son files for Guardianship, 2 of the other siblings join him, they all want Dad in a nursing home to limit costs and increase their inheritance

• Everyone gets an attorney, fighting begins

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As a Judge, would you:• 1. Appoint oldest son as Guardian & Conservator

• 2. Appoint oldest daughter as Guardian & Conservator

• 3. Appoint public administrator as Guardian & Conservator

• 4. Appoint independent third person as Guardian & Conservator

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As a Judge, would you:• 1. Dismiss the Petition, as the least restrictive

alternative (current situation) is meeting the needs of the proposed ward and protectee

• 2. Set matter for hearing as quickly as possible

• 3. Require the parties to mediate

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Mediation Authority• Supreme Court Rule 17

• Effective 7/1/1997• Local Rules (Examples)

• St. Louis County Circuit Court Rule 38 (21st Judicial Circuit)• To foster timely, economical and voluntary settlement of

lawsuits• Applies to civil actions heard on the record, pending in a non-

family court division, upon the agreement of the parties or order of the court

• City of St. Louis Rule 38 (22nd Judicial Circuit)• Adopts mediation as its ADR method• All cases assigned to the general divisions

• Administrative Orders

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Example• Family courts have long been among the earliest court adopters of dispute resolution programs – most often mediation• Referring family disputes to mediation is logical,

especially where children are concerned• Parents, not judges, are generally best equipped to

make decisions about their children• Fosters communication, collaborative problem-solving

to maintain the future long-term parenting relationship• Change the wording to reflect elders and the same rationales apply

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Example• Family Court

• Parenting Coordinators Program, St. Louis County• Program established 2008 by Administrative Order of the

Family Court, 21st Judicial Circuit• Lawyers trained• Example Administrative Order• Guidelines promulgated• Public Informed in Court Guide

• Revised 2010, see Page 8

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Research• Although Elder Mediation has been a topic of discussion for years, there have been few studies of its rates of success

• These three studies, however, are quite revealing:• 1. The Center for Social Gerontology• 2. Canadian Report• 3. Alaska Report

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Research• The Center for Social Gerontology (TCSG) 2001 Report• TCSG had engaged in collaborative guardianship reform

efforts since the 1970’s, helping to result in many states’ laws directing court to find the least restrictive available alternative to guardianship

• 2001 Report studied pilot elder mediation projects in Ohio, Oklahoma, Wisconsin and Florida since 1996

• TCSG Conclusions included:• Mediation is successful when it is used in reaching

consensual agreements and resolving disputes without the appointment of a guardian or by the appointment of a limited guardian;

• The parties were satisfied with the mediation process

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Research• TCSG Recommendations included:

• Mediation processes and procedures, program structure and organization, need to be coordinated with guardianship case and related court proceedings;

• The court should consider establishing guidelines for completion of mediation within statutory time frames for scheduled court hearings;

• Court could delegate administrative tasks to a designated court employee to assign mediators, schedule mediations within two to four weeks from the date of referral, follow up on mediation progress, and ensure any agreement is returned to the court in time for the next hearing

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Research• Elder and Guardianship Mediation Project (British Columbia), Report issued January, 2012 (begun in 2007)• Response to:

• Amended adult guardianship and personal planning statutes in Canada

• Increased awareness of elder abuse and neglect will result in elder mediation’s becoming prominent (Braun & Watts, 2009)

• Concluded there is a need for specialized elder issues training and training for guardianships, substitute decisions, elder abuse and neglect

• Project Report (2012) available for download • http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2008347

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Results• ALASKA: The Alaska Court System’s Adult Guardianship/Conservatorship Mediation Program (2005, 2009 and continuing)• Alaska: 2009 study found

• Issue: Whether guardianship and who it should be• 86% of mediations reached agreement

• Issue: Handling of finances and property• 81% reached agreement

• Issue: Living arrangements for adults• 90% reached agreement

• Issue: Level of care needed• 88% reached agreement

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Results • Program Evaluation Results (Alaska)

• Tough cases referred• Reached agreement some or all issues 87% of time• Resulted in plans that enhanced care and safety 95% of

the time• Participants were satisfied with the agreements 91% of

the time• Mediation believed to be successful in avoiding

contested court proceedings in “all but a handful of cases”• Summer, 2009 ACResolution Magazine

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A Glass Half Full • Mediation is “something better” “more accessible and understandable to the layperson, less adversarial, expensive, and time-consuming, and more likely to produce an outcome that matches the interests of the disputants.”• Texas Law Review, A Glass Half Full at Vol. 73:1594