By Richard Pidgeon

Does your client’s loved one lack capacity to make decisions, or is there discord in the family over the elderly person going to a retirement village or into residential care? Elder Mediation might be right for your client.

Background

When the time comes for a transition to a retirement village, all sorts of issues arise about the autonomy of the elderly person in question and the issues vary according to the person’s mental capacity. This article looks at how common disputes at this stage of life can be handled and how Elder Mediation can help.

A person with a need for care may be part of a family facing tension amongst partners, children or grandchildren as to what is to happen for their loved one. The person who is the subject of the dispute may need support to make a decision or may need a decision substituted for them. This all depends on the person’s mental health and ability to make decisions for themself.

Enduring Power of Attorney and Court Orders

Getting an enduring power of attorney in place for your client’s loved one might be appropriate. There are practical and distinctly legal elements to this.

A person needs to be of sufficient mental capacity to know what they are doing in terms of creating an enduring power of attorney, in order to make one. The enduring power of attorney can be activated when a person lacks capacity, in accordance with the Protection of Personal and Property Rights Act 1988 (the Act). This differs from a regular power of attorney.

Independent legal advice from a lawyer is needed before a legally valid enduring power of attorney is made. Elder Mediation can help with who is to be the attorney, when and why the enduring power of attorney is obtained, and practical details such as accountability and consultation. Then a lawyer can be used, however there is no bar to using one at any stage. Getting practical things sorted before seeking formal legal counsel for the independent legal advice will save cost and alleviate family tension.

There is a real benefit to preparing an enduring power of attorney as to personal care and welfare and also for property. The welfare version is essential to help arrange a transition to a retirement village for an incapacitated person and the property version is essential for paying bills, for example.

If the person has enough capacity to make an enduring power of attorney, there may be disagreement amongst the family as to who holds either one or both powers of attorney and what the expectations are for consultation before big decisions are made. The trained mediators available under Elder Mediation are expert in facilitating discussions amongst families in quandaries over what to do and how to do it. The mediators are able to create the discussion to include or exclude the subject person as the individual case dynamics allow.

Welfare Guardianship and Property Management orders are able to be obtained through the Family Court under the Act, and orders made by consent are far easier to achieve in a cost-effective manner. Elder Mediation in this context would likely exclude the subject person as Court Orders are only necessary when a person’s capacity is too low to enable an enduring power of attorney to be made.

Now is a good time to consider arrangements as two important reviews are underway.

Reviews

There is movement in the legal world as to how to facilitate decision-making amongst people with impaired legal capacity as the Law Commission is undertaking a report at this time. The Preliminary Issues Paper IP49 He Arotake i te Ture mō ngā Huarahi Whakatau a ngā Pakeke | Review of Adult Decision-Making Capacity Law was issued in November 2022 and submissions closed in March 2023.

The Law Commission is committed to reporting back shortly. Changes to the Act are being mooted to increase accountability of decision-makers and to enable subject persons to increase their role in decision-making and participate in supported decisions rather than having others completely substitute their decisions for them. Elder Mediation mediators are already skilled in enabling elderly participants to make the most of what decision-making capacity they have.

The New Zealand Aged Care Association, in its 28 February 2023 submission on the Preliminary Issues Paper, colourfully emphasised the need for Aotearoa’s health system and retirement village providers to cope with increasing residential care pressures in particular, stating a silver tsunami of aging baby boomers is about to reach its doorstep. There is clearly a need in the community for arrangements to be made for advance planning as the population ages.

This Association also emphasised the need for enduring powers of attorney, or at least welfare guardianship orders, and notes that the Ministry of Health audit handbook for retirement villages encourages that:

all residents have an Enduring Power of Attorney that has been enacted, where an EPOA is not in place the provider is supporting actions to have one appointed.

Moving to residential care also engages the residential care subsidy and estate planning in advance of the placement. One spouse or partner may not need the provision of this care level and children or grandchildren may be concerned about the use of assets which might otherwise comprise an inheritance. The details of this aspect, that is, estate planning (which can involve trust law and gifting), are beyond the scope of this article, but Elder Mediation can encompass legal and non-legal topics and can address human concerns.

The retirement village sector also has a review of the Retirement Villages Act 2003 underway. The focus of the Retirement Villages Act is:

  • protecting the interests of residents and intending residents,  
  • to enable retirement villages to develop under a legal framework that is easy for residents, intending residents, and village operators to understand.

While a statutory dispute system exists already for retirement villages, there is no bar in an Elder Mediation to including concerns about care levels for existing residents. This may be relevant where the enduring power of attorney holder is challenged as to the level of care provided in the resident’s best interests. Hard questions of neglect or elder abuse may be raised in Elder Mediation. Mediators are careful to ensure all points of view are listened to once expressed in the trusting, collaborative environment of an Elder Mediation.

Elder Mediation process

The Elder Mediation service may be contacted by the methods below. This is the first step. Our case managers are trained to assist and answer questions as a first stage. If Elder Mediation is right for you, a mediator will be appointed. His or her charge is often apportioned amongst participants but that is a matter for your clients to decide.

The mediator will contact all stakeholders (family participants) and ascertain the issues. The parties can arrange a time and venue to suit, which is an attractive feature of Elder Mediation. The mediation is then convened and may take place over more than one meeting. The mediator can help draw up a record of agreement in a Settlement Agreement.

Conclusion

This article covers a range of issues which exemplify the broad scope of Elder Mediation but also the expertise of its mediators in elder law capacity disputes. The Elder Mediation can include the vulnerable elderly person or address the elderly person’s vulnerability by helping the participants to make arrangements for supported or substituted decision-making. The wider family’s concerns can be catered to, and the process may be made bespoke to suit the situation. Elder Mediation mediators are trained to listen and guide parties to a resolution stakeholders agree on, including the elderly person if he or she is able to participate.

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

This article is republished with the kind permission of Family Advocate. The article was first published in Family Advocate (Volume 25 Issue 3: Autumn).

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