Elder & Guardianship Mediation in BC

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Elder Law & Guardianship Mediation
Presentation to the CBA, BC Branch ADR-Vancouver Section March 13, 2012
...

Today’s Presentation on Elder & Adult
Guardianship Mediation

• essentially a summary of Elder and Guardianship Mediation:...

• the Aim of the Report is to give practical assistance
to those directly engaged in the field of elder and
guardiansh...

Context:

• Elder and guardianship mediation are new and
growing fields of practice
• BC now has proposed legislation ca...

Elder Mediation Defined
• The mediation of disputes arising in the context of
aging
• One or more of the parties will be...

Elder mediation can involve the following
issues:
• Family care giving
• Health and personal care arrangements
• Estate an...

Elder mediation can involve the following
issues, cont:
• Personal choices about daily living
• Standards of care in a...

Elder mediation can involve the following
issues, cont:
• Safety vs. independence and self-
determination - risk taking ...

Elder mediation can involve the following
issues, cont:
• Grandparent rights
• Family relationships and
intergenerationa...

Guardianship Mediation Defined

• the use of mediation in guardianship proceedings to resolve
disputes related to the de...

A Medley of Ethical Issues in Elder and
Guardianship Mediation
• Ageism
• Disability issues
• Impartiality/neutralit...

Ethical Issues in Elder and Guardianship
Mediation, cont.
• Risk Management in terms of abuse, neglect and
self neglect
...

Suggested Questions for the Mediator to
Assess an Individual’s Capacity to Mediate:
1. Can the respondent understand what ...

Demographics

• The total number of seniors (adults aged 65 and
over) in Canada is estimated to increase from 4.7
mill...

Demographics, cont.

• The “older old” cohort of seniors aged 80 and older
is projected to more than double, from
appr...

Dementia

• while most older adults retain capacity throughout
their lives, there is a strong correlation between age
...

Elder Abuse

• “a single or repeated act, or a lack of
appropriate action, occurring within any
relationship where the...

Elder Abuse, cont.

• types of elder abuse: 1) physical abuse; 2)
financial abuse; 3) psychological or emotional
abuse...

Elder Law

• typically involves the integration of multiple
areas of law with the goal of providing legal
services th...

Elder Law includes the following topics:

• Estate law and succession planning (including inter-
generational transfers ...

Elder Law includes the following, cont.:

• Scams, frauds, financial theft or abuse of a financial
instrument (such as a...

Elder Law includes the following, cont.:

• Inter-generational / family disputes
• Real estate law
• Housing and tenancy
•...

Elder Law includes the following, cont.:

• Administrative law
• Disability law
• Employment law
• Undue influence...

Elder Law includes the following, cont.:

• Breach of trust
• Medication use / misuse / over-prescription
• Visitati...

Elder Law, cont.:

• While the issues noted above can affect any
person across the life course, they may
disproportion...

Elder Law, Capacity & SDM

• Central to elder law are the twin issues of capacity
and substitute decision-making
• The d...

Elder Law, Capacity & SDM, cont.

• Capacity is defined as the ability of an
individual to understand information releva...

Elder Law, Capacity & SDM, cont.

• Capacity is integral to substitute decision-making
legislation. In order to give rig...

Adult Guardianship Legislation Generally

• Guardianship of an adult (or “adult guardianship”) is
the result of a court ...

Adult Guardianship Legislation Generally,
cont.
• In the past, mental incapacity legislation adopted an
all-or-nothing a...

Adult Guardianship Legislation Generally,
cont.
• The more recent modern guardianship regimes are
founded on principles ...

Adult Guardianship Law in BC

The Patients Property Act
• In BC, adults are presumed to have capacity
and to be capable ...

Adult Guardianship Law in BC, cont.

Section 1 the Patients Property Act defines a “patient” as:
a) a person who is de...

Adult Guardianship Law in BC, cont.

• Subject to this Act, incapability is a legal determination made on
the basis of m...

Adult Guardianship Legislative Reform in BC

• Adult guardianship law in BC is in a state of
transition
• A number of re...

Adult Guardianship Legislative Reform in BC,
cont.
• finally in 2007 the BC Legislature passed Bill 29, The
Adult Guardi...

Adult Guardianship Legislative Reform in BC,
cont.
• On September 1, 2011, the new provisions dealing with
advance plann...

Bill 29

• Bill 29 goes a long way toward creating a modern
guardianship regime for BC. It redresses the paternalism of
...

Bill 29 & Mandatory Mediation Provisions

6(1) If a guardianship application is made under section 5 and
there is a dis...

Bill 29 & Mandatory Mediation Provisions,
cont.
Section 6(2) provides that certain disputes must not be
mediated:
(2) Th...

Bill 29 & Adult Guardianship Act Regulations

• Once drafted, it is anticipated that the regulations will provide necessar...

Elder & Adult Guardianship Mediator
Training
• The development of elder mediation training and
standards in Canada is in...

Suggested training requirements for elder
mediators:
• Minimum basic mediation training and
experience
• Family dynamics...

Suggested training requirements for elder
mediators, cont.:
• Ethics (self-determination, quality of process,
capacity t...

Suggested training requirements for elder
mediators, cont.:
• Self-determination and maximum
participation (ensuring voi...

Suggested training requirements for elder
mediators, cont.:
• Health care issues
• Knowing community resources
• Recognizi...

For adult guardianship cases, the following
suggested additional mediation training is
identified:
• Guardianship law and ...

For adult guardianship cases, the following
suggested additional mediation training was
identified, cont.:
• Capacity to p...

General recommendations of the Report are
the following:
(a) Elder mediation requires specialized skills-based training an...

General recommendations of the Report are
the following, cont.:
(d) Impartiality of the mediator does not mean the
medi...

General recommendations of the Report are
the following, cont.:
(f) Co-mediation is generally an ideal model for
the mu...

• The Report also includes detailed
recommendations with respect to a court-
connected guardianship mediation program
...

Thank you!

Nicole Garton-Jones, B.A., LL.B
Heritage Law

Tel: 778-786-0615 ext.111
Email: nicole@bcheritagel...

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