Independence and self-determination vs. safety issues
Mental illness and/or dementia
Abuse, neglect or self-neglect
building on work done in the US, Canadian legislatures are increasingly mandating some form of mediation in the areas of guardianship, powers of attorney, care giving and long term care (nursing home) issues;
in October, 2007 the BC legislature passed the Adult Guardianship and Planning Statutes Amendment Act (Bill 29);
intended to clarify, strengthen and update the laws relating to adult guardianship and incapacity planning instruments, including advance directives, representation agreements and enduring powers of attorney;
once the Bill is proclaimed, it will require mandatory mediation for guardianship applications in many common circumstances.
What are Ethics?
a system of moral principles;
Elder Mediation Canada - Code of Professional Conduct for Mediators Specializing in Issues of Aging;
the ethical rules and standards governing lawyers are set out in the Law Society of BC’s Professional Conduct Handbook.
Five key ethical principles of mediation generally:
Ethical Challenges of Elder Mediation:
How to mesh traditional mediator ethics with the internal complexity of elder decisions:
rarely one decision involved;
inherent tension between issues of dependence vs. independence in multiple areas of life (physical, cognitive, social, domestic and financial changes make for a period of intense decision making)
Ethical Challenges of Elder Mediation (cont):
Multiple parties involved in decisions;
Decision making difficulty and conflict may arise in many ways (misunderstandings, superstitions, prejudices, poor planning, entrenched relationship patterns, disagreement about what is needed or lack of info on what services are available);
Waiting too long can lead to crisis mode decision making (delays can decrease options, increase costs and may put the elder’s health or safety at risk)
Selection of Ethical Issues in Elder Mediation – Both Voluntary & Mandatory
impartiality of mediations;
capacity to mediate or participate in the process;
abuse / neglect / self-neglect;
conflicts of interest;
deciding if mediation is appropriate;
the necessity of legal advice or representation; and
mediator accreditation / training.
Mediator conduct rules that are especially pertinent to elder cases include those that involve the principles of:
a procedurally fair and balanced process
Is Mediation Appropriate?
Substance abuse and/or mental illness issues?
Emergency decision needed by a court?
Volatile or extremely hostile behavior by one or more parties?
Severe power imbalance, possible coercion or intimidation of a vulnerable party?
Can elder meaningfully participate (too incapacitated to take part, understand and voluntarily make or keep agreements)?
Possible criminal activity?
determination of capacity is a legal, not a medical test;
capacity is assumed in adults unless proved otherwise;
capacity is a continuum, decisional and can be situational and influenced by abuse;
capacity itself cannot be mediated;
Just because you are making bad decisions does not mean you are incapable;
Capacity Issues Cont.
McMullen v. Webber , 2006 BCSC 1656 was an example of attorneys under power of attorney attempting to use the power of attorney to protect the donor who had depleted his investments, incurred debt and gifted significant money to a new acquaintance. Madam Justice Fisher pointed out that:
“ the law does not require individuals to make decisions in their own best interests.”
“ Mr. McMullen may be making improvident decisions, according to his family, but the law entitles him to do so, provided he is capable of making financial decisions and does not harm others. There is no question that it has been, and continues to be, extremely difficult for Mr. McMullen’s family to watch him make what they see as questionable decisions, but unless and until Mr. McMullen is declared incapable of managing his financial affairs, his attorneys are not entitled to step in and make decisions for him without his knowledge and consent.”
Capacity Issues - Practice Points:
Mediators should be alert to the issue of whether an elder party requires some form of legal or court-supervised representation (helps preclude a party from alleging that an elder’s lack of capacity is grounds for nullification of a mediated agreement);
an elder may be able to meaningfully participate but not have capacity to enter into a binding settlement agreement;
If an elder cannot meaningfully participate or make a binding decision, elder should not be at the table but other interested parties may mediate in his/her absence.
The right to privacy and potential sharing of financial and medical records a frequent ethical issue in elder mediations;
May be a tension between the right to privacy and the need for disclosure when disclosure is required in order to make informed decision making.
Chapter 5 of the Professional Conduct Handbook
a lawyer may not disclose information acquired through the professional relationship, except:
to prevent a serious crime;
where required by law; or,
if the lawyer believes the client is not capable of instructing counsel on the issue of disclosure and the disclosure is for the purposes of securing the appointment of a guardian or other protective action on behalf of the client.
Does Whoever Pay the Piper Call the Tune?
If one party pays or the cost of mediation is divided unequally (e.g. based on ability to pay or desire to mediate), the unequal payments may contribute to a perception of mediator bias or a feeling of power imbalance among the parties;
Frank discussion needed to air out thoughts?
Elder Mediator Values
Neutrality or an underlying philosophical point of view to help families preserve as much elder independence as possible?
Committed to a fair process in which parties participate voluntarily, are fully informed and determine their own outcomes;
If an ethical issue cannot be managed or overpowers elements of the process, a mediator may choose not to mediate, to temporarily stop or to withdraw from the mediation.