How Elder Mediation can help when questions of neglect and elder abuse arise?

Background

Neglect can be passive or active, ranging from failing to check on an elderly person to actively blocking their enjoyment of amenities, resources such as diet and friendships and even freedom of movement. These are generally welfare issues and elder abuse can encompass this but also extend to property issues such as misuse of bank accounts and forcing the disclosure of PIN numbers. Elder abuse can also encompass assault such as pinching, bruising or a wide range of physical or psychological abuse.

It is such a serious international issue that World Elder Abuse Awareness Day occurs each 15 June. Often the culprit is a local family member provided with a means to access funds and perhaps an ability to be close to the elderly person while other family members live further afield. However, on some occasions the elder abuse and neglect may be institutional as a result of substandard residential care or treatment at a retirement village.

Elder Mediation can help in many cases more. However, where cases involve dishonesty or abuse at a significant level, it may be necessary to contact the Police. It may be easiest to convey the issues by providing examples based on cases which have occurred in the past.

Two examples of neglect and elder abuse

In one example, a widower was placed into a retirement village once his wife had passed away. He had a will which left half his estate to one of his sons and the other half to his late other son’s only child, his only grandchild. The elderly man had made both an enduring power of attorney as to property and welfare guardianship in favour of his surviving son. The elderly person’s family home was sold before he went into the retirement village and the funds were placed into an account which the son controlled.

Over time the elderly man’s capacity dwindled and the son somehow got hold of his father’s PIN number. The son bought a car, went on boat cruises and the funds reduced to only $11,000 when the elderly man eventually passed away. The Public Trust as executor of his estate eventually caught up with the son and took him to court. The case went to the Court of Appeal and the son and his wife were ordered to reimburse the estate, but meanwhile the grandson was deprived of his inheritance by the son’s misdeeds.

This example is one where the Police might properly be involved (at least four cheques were also forged in that real life example). However, when a question of competence is at issue rather than dishonesty, Elder Mediation might be engaged with.

In an example of incompetence, a daughter was appointed by her mother as enduring power of attorney holder for welfare and property. The mother was beset with vascular dementia and went downhill rather quickly after executing the powers of attorney. Her home was sold and she was placed in a resthome in Auckland but then moved to a resthome in another provincial city to be closer to other family and to give the Auckland-based daughter some respite.

As a consequence of the respite care, which ended up being much longer than anticipated, the local provincial family realised all was not well. The focus was on the payment of bills and the management of their mother’s (and grandmother’s) financial affairs.

The sister was recognised as having her mother’s best interests at heart but, on her own admission, she lacked the competence to manage her mother’s affairs, especially from a property perspective. By common law the property manager is required to keep an account of the subject person’s financial affairs and the daughter could not as her mother’s paperwork was strewn over the floor of the daughter’s home in a state which was not fit for accounting. The daughter was removed by the Family Court as property manager and welfare guardian but won a High Court appeal regarding the welfare guardianship enduring power of attorney. This took time and the mother was stuck in the middle.

In the second example, Elder Mediation can help. Elder Mediation is a neutral forum where issues can be raised in a trusting and collaborative environment and all perspectives are listened to. It would be suitable for the second example but unlikely the first.

Elder Mediation

Elder Mediation can help when emotions run high, to dampen the tension and to help focus on the practical matter of acting in the elderly person’s best interests. Mediators are trained to isolate issues and ensure stakeholders focus on them. This may involve parties asking the hard questions which relate to neglect and elder abuse whether of a welfare or property nature (or both, which is often the case). No one individual will be the sole focus of angry comment; rather, the discussion will be relentlessly productive.

The outcomes of Elder Mediation could potentially involve the change of enduring powers of attorney, or the obtaining of orders from the Family Court for welfare guardianship or property management. Changes might be by substituting the person or making two people joint holders in terms of property powers, (as welfare enduring powers of attorney or orders must be vested in only one person, although a “back-up” attorney is often also appointed).

From a first contact on the below details, the case manager will help ascertain whether Elder Mediation (at first glance) is suitable. A mediator will then be allocated to contact the parties, which they will do in order to ascertain the issues to be focused on. There will likely need to be some time for the voicing of concerns at the mediation, and the mediator will enable this and for each party to listen to the other’s points of view. However, ultimately a mediated agreement is the end goal and the mediator is engaged to achieve this.

Parties will need to work out what urgent steps are needed to safeguard their loved one, and this may involve contacting the authorities or obtaining medical care. On the agenda for Elder Mediation might be the potential shift of rest homes with a transfer necessary if care and treatment of the elderly person is substandard. This might involve a movement out of a city or province and disruption to the loved one’s existing community contacts and support base. Such issues are practical ones as much as legal ones and can be canvassed at Elder Mediation.

Parties may wish to both examine the care arrangements for their elderly loved one as well as maintain existing family relationships. Elder Mediation is a good forum for this dual goal to be achieved, and a bespoke process, time and venue may be arranged. The mediator will help to arrive at an agreement and can assist to draft the agreement in writing. Should it need to be enforced, a court order can be obtained, and the agreement can be the basis of consent orders which will save time and cost. Elder Mediation has the added advantages (over court) of being timely, confidential and informal.

It is helpful to consider these issues now, as there is a review of the Retirement Villages Act 2003 occurring at present and elder abuse and neglect are highly relevant to considerations of residents’ best interests. The Act seeks to protect residents and is relevant to guarding against institutional abuse. The statutory disputes mechanism is beyond the scope of this article which focuses on family disputes.

Conclusion

This article is intended to highlight the important issues for vulnerable elderly people that Elder Mediation is capable of addressing. It is wholly accepted that not every dispute is suitable for Elder Mediation, but outside of incidences of dishonesty and serious physical abuse, it is likely that Elder Mediation can have a positive role.

If you have any queries or you would like to commence Elder Mediation, please contact our Elder Mediation team on 0508 FDR Centre (0508 337 236) or email casemanager@fdrc.co.nz.

www.fdrc.co.nz

FDR Centre FLA90 Arbitration Rules

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