Knowledge Base

Guardianship Issues Resolved with Family Mediation 


June 1, 2010

As our population ages, caretaking problems multiply. We all know about the “sandwich generation”, those who are caring for their own children at the same time that they are caring for aged parents. These individuals are over loaded with obligations to dependents with very differing needs and demands. In some instances, the situation becomes emotionally and/or financially unmanageable. The burdens can be reduced if there are adult siblings in the family who can share the responsibility for their parents’ care; that is, of course, if the siblings agree on what needs to be done and who will do it. Herein often lies the dilemma. Let’s take a look at two different families who entered mediation to resolve disagreements involving the care of an elderly parent.

Family Number One was comprised of two adult sisters, Carol and Allison, whose mother was recently diagnosed with Alzheimers. Until the death of their father, mom and dad had been living at home. They were financially solvent and handled their own affairs with no help from their children. Then within one year, dad died and mom received the diagnosis of Alzheimers at the moderate level. The sisters wondered how they missed the signs. “Where were they?”, they questioned themselves. Thinking back, they could recall her repeated phrases, the forgetfulness, the complaints from their father. They had been busy with their own lives and, after all, no one asked them for help. Now dad was gone and the problem was all too real. Let’s explore the situation a bit further.

Carol was married and had two children, ages nineteen and twenty. Both were in college. Her husband was a software designer who worked for a large company. Recently his salary had been cut by fifteen percent due to decline in business since the recession. Carol worked part-time as a bookkeeper and felt that her job was reasonably secure, although business had been declining in the last year. Carol lived about an hour away from mom’s home.

Allison was also married but did not have any children. She worked full-time as an architect, often working sixty or more hours a week. Business had really shrunk during the recession with only five architects left from a firm that had once employed fifty-two. Allison’s salary had not decreased but her workload certainly had escalated. Her husband was an accountant who worked for a large corporation. His job was secure and his income had not been affected by the recession, at least not yet. Allison lived about forty-five minutes from mom’s house.

The sisters got together with their husbands to decide what needed to be done about mom. They soon realized that they knew less than nothing. They did not know anything about mom’s financial resources or the medical prognosis for the progression of her disease. The one certainty was that mom could not live alone. Allison expressed a willingness to help but said that she had no time to contribute. She was already too strung out. Carol agreed; she was strung out too – she had little free time and little resources, especially with two children in college. After a bit of small talk, the dialogue began to deteriorate. The sisters could not even agree on how to tackle mom’s finances or speak to mom’s doctor. Sal, Allison’s husband, stepped in. He offered to review the family’s finances. Carol offered to call the doctor to find out more about mom’s prognosis and what kind of resources they might need for her support. So far so good – but not for long. Yes, Sal went over the family’s estate records and discovered that there was over a million dollars in investments, excluding the family home. Carol confirmed with the doctor what they all knew – mom could not live alone. Given their research, they all agreed that there were sufficient funds to pay for a caretaker. But that was about as far as they got. They could not decide if they should keep mom in the house and pay for outside or live-in help or if they should find a residence for Alzheimers patients. Nor could they decide how to share visits. When would they each be responsible for seeing mom? How would they manage her money? Who would manager her care? Who would be responsible for what? Carol thought they should be careful and preserve mom’s funds. Allison thought that mom’s money should be spent on mom – there was enough not to be frugal.

And so the debate continued without resolution and with patience waning and tempers beginning to flare. The sisters finally reached an agreement – they agreed that they could not agree. They had competing interests and needs that were interfering with facing the situation at hand and handling the care of their mother. While they argued, mom was living alone in a big house without any real comprehension of her own needs and little ability to care for herself. Realizing the urgency of the situation, Allison proposed mediation as a means to design a plan for mom’s care. And mediate they did.

The sisters and their husbands successfully completed a mediation in which they agreed to sell mom’s house and have mom live half-way between the sisters’ homes in a really lovely assisted-living residence especially designed for Alzheimers patients. They set up a visitation schedule, dividing time between the four of them in a way that accommodated work schedules and family demands. They even managed to get commitments from other relatives, weaving them into the schedule.

As for managing the money, they hired an agency specializing in overseeing the investment of funds and even paying the bills. They agreed that the cost more than compensated for the savings in time. Anyhow, none of them had any expertise in managing investments.

Mediation proved to be an efficient process; it saved time and even money. Most of all, it preserved the sisters’ relationship, while resolving the issues facing them. Mom was in a safe and caring environment and Carol and Allison could be involved without being overwhelmed.

Family Number Two was also comprised of two sisters whose mother was in an Alzheimers unit in a special facility. One of the sisters had been appointed by their deceased father as mom’s guardian; she also had power of attorney and was in charge of mom’s finances. Thus, sister number one, whose name was Mia, had all the control – control of mom and control of an estate of over $2 Million. As you may have guessed, sister number two, whose name was Lucy, was not happy with the situation. She felt that her deceased father had picked his favorite child to handle everything, a task she was ill equipped to manage. She believed mom would have picked her to be her caretaker as they were always close. The situation deteriorated. The sisters refused to talk to each other; Lucy went a step further, she hired a lawyer to have a guardian appointed by the court to be in charge of all decisions related to mom’s care. She also wanted a conservator appointed to handle the funds.

Fortunately for mom, the sisters, and the estate, Lucy’s lawyer recommended mediation to his client. By then, Mia also had an attorney; a legal battle was in the offering.

Mediation worked here also. Surprisingly, Mia did not want any of the so-called power she was granted by their late father. She did not want to make decisions on mom’s care or to decide how to invest and spend the money. She felt trapped in a role that she had not asked for or wanted. With their lawyers’ input and the mediator’s guidance, the sisters decided that they would ask Marilyn, a social worker who assisted them in finding mom’s assisted living facility, to oversee mom’s care. They, of course, would need to make major life decisions together, a role that they thought they could handle collaboratively. As far as the funds, they too decided outside assistance was needed but not assistance appointed by the court. Instead, they agreed to give their attorneys the authorization to research and retain a fee-for-service financial advisor to handle mom’s estate. Mia proposed that mom’s life long accountant find a bookkeeper to handle mom’s bill paying.

Here the family situation was very different than that of Family Number One. The sisters did not have a good relationship; each viewed herself as the favored child of one of the parents. They saw themselves as competitors for parental attention and love. Neither really wanted to be encharged with mom’s care and management of her estate, but neither one wanted the other one to have any control or power. Outside assistance was the solution of choice, not to save time or effort, but to avoid sibling interaction. These two sisters could not work together, except in the limited capacity of making life and death decisions. Yet their employment of outside help enabled them to avoid involvement and control by the court. Mediation not only saved this family the expense of legal proceedings but at least did not erode further the slim sisterly ties that still existed.

Please Call Our Office For Answers To Your Questions - 781.239.1600


Free in-person or telephone consultations available Literature and fees are available upon request.
To schedule an appointment, please call 781-239-1600 or e-mail us at cmdr@cmdronline.com