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Mediation
of
Guardianships
Adds New
Twist
(on-line
version)
There is
an
exciting
new
alternative
to
contested
guardianship
proceedings:
Elder
Care
Mediation.
Attorneys,
mediators,
and
family
members
are
applauding
this
skillful
approach
to
minimizing
guardianship
disputes.
Thirty
mediators
were
recently
trained
in
Indianapolis,
Fort
Wayne,
and
Chicago
to
provide
these
services,
and a
national
network
has been
launched
at
www.EldercareMediators.com.
Guardianships
are akin
to
losing
dignity,
freedom
and
personal
choices.
They can
divide
families,
or
entrench
already
broken
families
into
permanent
and
irreconcilable
camps.
Family
members
are
often
overwhelmed
in
having
to make
crucial
decisions
for
their
loved
one,
especially
when no
end-of-life
documents,
including
a power
of
attorney,
have
been
prepared.
Family
members
often
argue
strenuously
about
who
should
serve as
the
guardian.
In
situations
without
a power
of
attorney,
mediation
is a
useful
tool to
assist
family
members
by
helping
them to
reach
consensus,
avoiding
a
dragged-out
court
battle.
In
mediation,
family
members
are
assisted
by a
neutral
third
party in
focusing
on the
best
interest
of the
elderly
person,
and in
arriving
at
agreements
regarding
the
person.
Once a
family
mutually
agrees
on who
should
serve as
guardian,
the
necessary
papers
can be
drafted
by
attorneys
and
presented
to the
courts
on an
agreed-upon
and not
contested
basis.
Contested
guardianship
proceedings
are
time-consuming
and
expensive
for all
involved,
and a
burden
to
already
over-crowded
courts.
Elder
mediation
focuses
on the
needs of
the
elderly
and
their
families.
Using a
facilitative
model,
rather
than
shuttle
mediation,
mediation
is used
to
resolve
conflict
among
families,
seniors
and
organizations.
It
offers
seniors
and
their
families
an
opportunity
to
clarify
what is
most
important
to them,
share
resources,
consider
alternatives,
and find
effective
and
satisfying
solutions.
Mediation
puts the
decisions
back
into the
hands of
those
who have
a vested
interest
and who
must
live
with the
results
of a
court
order.
Estate
matters,
end-of-life
decisions,
living
arrangements,
medical
preferences,
and
driving
privileges
are
typical
of the
types of
disputes
which
may
successfully
be
resolved
through
mediation.
Attorneys
should
consider
mediation
over
litigation
for
several
reasons:
it has a
high
success
rate; it
permits
the
elderly
to be
involved
to the
greatest
extent
possible,
giving
“power”
to those
who will
be most
effected
by any
court
decision;
it is
goal-directed,
helping
family
members
focus on
future
needs in
arriving
at sound
decision;
and it
helps
attorneys
fulfill
their
ethical
duty to
provide
effective
alternatives
to
litigation.
Guardianship
Law
Guardians
are
substitute
decision
makers
appointed
by the
probate
court to
manage
the
affairs
of the
incapacitated
or
protected
person.
Indiana’s
“Guardianships
and
Protective
Proceedings”
statute
is found
in
Article
3, Title
29, of
the
Indiana
Code.
The
statute
sets
forth
the
procedures
by which
a person
becomes
a
guardian
for the
personal
and/or
business
affairs
of
another.
Non-Relative
Serving
as
Guardian
Two
recent
Indiana
Supreme
Court
cases
found
that
non-relatives
could
serve as
guardians,
looking
at the
best
interest
standard.
These
cases
involve
minors,
but
since
there
are no
published
opinions
discussing
the
application
of the
guardianship
law to
the
incapacitated,
they may
provide
needed
guidance.
The
Court in
In
the
Parenting
Matter
of A.B.
Dawn
King v.
S.B.,
837
N.E.2d
965
(Ind.
2005),
held
that a
female
domestic
companion
was
entitled
to
parenting
time
rights,
child
support
obligations,
and
certain
other
parental
rights
and
responsibilities
with
respect
to
respondent
mother's
6-year-old
child,
whom the
couple
had
Jointly
decided
to bear
and
raise.
The
highest
court
construed
the
complaint
liberally
to
conclude
that the
companion,
even
though
not a
natural
parent,
could be
entitled
to
relief
based
upon the
Court’s
previous
decision
in In
re
Guardianship
of B.H.,
770 N.E.
2d 283
(Ind.
2002).
In the
Guardianship
of B.H.
case,
the
Court
affirmed
a trial
court's
grant of
permanent
guardianship
of two
children
to their
stepfather
after
the
death of
their
mother.
The
Court
rejected
the
children's
biological
father's
motion
to
dismiss
the
stepfather's
request
that he
be
appointed
guardian.
B.H. and
S.H.
were
born to
Edward
and
Sherrie
Holley
during
their
marriage.
Edward
and
Sherrie
separated
in 1991
and the
children
moved
with
their
mother
to
Indiana.
During
this
time,
their
father,
who was
serving
in the
Army,
was
stationed
in
Germany
and
Boston.
The
children
remained
with
their
mother,
who
began
living
with
John
Childress,
Sr., in
September
1994.
The
Holley's
marriage
was
dissolved
in
December
1996
pursuant
to a
decree
reflecting
the
parties'
agreement
that the
mother
have
custody
of the
children
and the
father
have
specified
visitation.
The
decree
ordered
the
father
to pay
child
support.
The
mother
and
Childress
were
married
in
August
1997.
The
mother
died on
December
22,
1998,
when the
children
were 13
and 14
years
old.
Childress,
as their
stepfather,
immediately
sought
and
obtained
an
emergency
order
appointing
him
temporary
guardian
of the
children.
On
January
11,
1999,
the
father
filed a
petition
to
terminate
the
temporary
guardianship.
Three
days
later,
the
stepfather
petitioned
for
appointment
as
permanent
guardian,
which
the
father
sought
to
dismiss.
Following
a
contested
hearing
on the
pending
motions,
the
trial
court
denied
the
father's
motions
and
appointed
the
stepfather
as
permanent
guardian.
Role
of
Eldercare
Mediation
Since
the
Indiana
Supreme
Court is
permitting
such an
interpretation
of the
guardianship
law, the
possibility
of
additional
contested
adult
cases
could
result.
Providing
mediation
instead
would
serve
the
elder’s
best
interest.
Since a
“preferred”
guardian
is a
person
who has
been
designated
in a
valid
power of
attorney,
where a
power of
attorney
has been
properly
executed,
a
guardianship
proceeding
may not
be
needed.
Guardianships
may be
needed
for
those
incapacitated
persons
who have
not
designated
an
attorney-in-fact.
The
alternative
of
eldercare
mediation
for
guardianships
is an
important
one. It
helps to
preserve
family
relationships,
cuts
emotional
and
financial
costs,
and
serves
the best
interest
of the
incapacitated
person.
Provided
by
Mary J.
Hoeller,
a sole
practitioner
in
Indianapolis.
She is a
registered
nurse
since
1974 and
a 1982
graduate
of the
University
of
Pittsburgh
School
of Law.
She
practices
law in
the area
of civil
litigation,
estate
planning,
and
probate.
She is a
trained
family
and
eldercare
mediator.
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