Mediation has become a popular method of resolving disputes in both family law and civil litigation. It can also be used for resolving disputes in guardianship proceedings.
From a legal perspective a guardianship is a legal proceeding to determine a person’s capacity or lack thereof, determine what decision making power should be taken away, and who should be appointed guardian.
Guardianship disputes usually fall into two categories: 1. the degree of incapacity and 2. Who should be guardian?
Anyone who has practiced for very long in the guardianship area has had both types of disputes arise. Many times someone with dementia will not be able to perceive that they have a problem. Likewise family members may be in denial as to their loved one’s lack of capacity. Also the reverse custody fight where family members fight over who should be guardian happens all too often.
One of the benefits of a mediated settlement is that it can help preserve family relationships. Many guardianship proceedings are filed by the adult children of elderly parents. A contested court proceeding in guardianship can be just as much an adversary proceeding as any other form of litigation.
By shifting the focus of the discussion from an adversary proceeding to problem solving, where instead of child against parent or child against child we can have a situation where a family is working together.
Most guardianship contests are ultimately financed out of the proposed ward’s estate. The applicant’s attorney, the attorney ad litem and the guardian ad litem as well as physician’s expert witness fees usually end up paid for by the proposed ward. Guardianship litigation can be just as expensive as any other type of contested proceeding and a mediated settlement can help save money to be used for the care and benefit of the ward.
A settlement preserves a certain amount of privacy. No one enjoys having their infirmities discussed at length in open court or having the family dirty laundry displayed in public.
Of court the parties are not totally free to resolve the dispute on their own terms. Any settlement agreement must be approved and implemented by court order. But in my experience Judges love settlements. In most contested cases the Judge will hear from the court’s own probate investigator and the guardian ad litem as to wisdom of any settlement.
The best mediator in a guardianship matter is an attorney who is experienced in guardianship and trained in mediation. Mediation is a skill that must be learned and practiced. Crafting a solution for a family in a guardianship matter requires a thorough knowledge of the law and practice of guardianship law.
Certified Mediator Robert Morris is experienced in guardianship matters. He is a member of the National Academy of Elder Law Attorneys, is certified to serve as a Texas Ad Litem, and is admitted to represent clients before the Veteran’s Administration. To contact Robert Morris regarding mediations, call the offices of Hammerle Finley at 972-436-9300.
