Family,
Alternative Dispute Resolution
Jul. 9, 2025
Mediation of family care disputes requires more than a one-size-fits-all approach
Disputes over conservatorships and elder care are rarely as straightforward as they first appear, requiring careful consideration of each family's unique circumstances.





Cynthia Ludvigsen
Neutral
lternative Resolution Centers
Hon. Cynthia Ludvigsen (Ret.) is a neutral with Alternative Resolution Centers who served 20 years on the San Bernardino Superior Court. She presided for more than a decade in the Probate Department, where she handled hundreds of estate and trust matters, including trust administration and litigation, will contests, interpretation of wills and trusts, elder abuse disputes, conservatorships - including court and jury trials on competency -- and guardianships.

During my years on the probate bench, I regularly saw families
divided over very painful and personal matters. An adult child might be
concerned about the welfare of an elderly parent; divorced parents might be
struggling with appropriate care and placement for their neurodiverse child
entering adulthood. Each person standing before me believed they had a clear
picture of the issues and a plan for how to resolve them.
But what may have seemed to some as simple open-and-shut cases
were often far from that. Information from the parties, including proposed
conservatees, family members, court investigators and other agencies, such as
regional centers and adult protective services, often enabled the parties and
the court to shape resolutions individual to each case.
Mediation offers an alternative process, both safe and
supportive, that allows family members who are dealing with difficult and
life-altering developments to share their concerns, listen to one another and
truly open their minds and hearts to new ways of seeing things.
Conservatorships
While on the bench, I was struck by how often parties sought
conservatorships for family members whom they believed to be incapable of
caring for themselves. Conservatorships are important tools for protecting the
health and safety of vulnerable individuals, but they are not always the right
answer for family concerns.
Under the law,
a court can appoint a conservator to care for another adult when that person
cannot meet their physical needs for physical health, food, clothing or shelter
or cannot manage their financial resources or resist fraud or undue influence.
Because conservatorships deprive those individuals of the right to make
decisions about their own lives, courts are obligated to consider whether
effective less restrictive options are available before appointing a
conservator.
Despite the parties' assertions and assumptions, consideration
of less restrictive means along with evidence from regional centers, Adult
Protective Services or other supportive groups may expose a picture that is
different than the one the parties are painting. The spouse of an elderly
person with dementia might themselves be suffering from memory or mobility
problems; an autistic child might be capable of managing her life with only
modest outside support. The courtroom, alas, is not always the best venue for
delving into these types of issues.
Elder abuse
Love for parents is fundamental; nothing can be more traumatic
than watching an older parent deal with severe mobility or memory problems.
When that parent is mistreated or otherwise diminished by a caregiver, loved
ones are understandably angry. They seek justice for the parent and a way to
assuage their own feelings of guilt.
Penal Code
Section 368 makes it a misdemeanor or felony to engage in physical,
mental, or financial abuse of a person 65 years or older or to isolate, abandon
or seriously neglect such a person. When a parent shows signs of mistreatment
while in assisted living or a nursing home, accountability is generally clear.
Bed sores and other injuries could mean that staff members are not doing their
job. In 2024, Gov. Gavin Newsom signed into law AB 1417, requiring the
timely reporting of abuse that occurs in long-term care facilities.
When, however, the caregiver is the other parent, the picture
may not be as clear. An adult child who sees bruises on a memory-impaired
parent might jump to the conclusion that the other parent has been engaging in
elder abuse. In court, they might seek a restraining order, sanctions against
the alleged abuser, and power of attorney to make medical and other important
decisions on behalf of the victimized parent.
The court might ask for an investigation by Adult Protective
Services before making a decision, but - out of an
abundance of caution - it could move quickly to grant the requests. The
immediate threat might thus be mitigated without anyone understanding the
larger picture. What if the picture is completely different than what the
parties see?
The caregiver parent might also be suffering from dementia. An
allegedly abusive parent could, in fact, be unable to provide basic care for
his or her spouse while also rapidly losing the ability to engage in self-care.
Without a separate investigation and diagnosis, that caregiver parent could -
unfairly - be branded an abuser. How much better it would be to recognize and
address both parents' needs and to establish a protective plan for both,
whether conservatorship or a less restrictive option.
Adult children
I often heard cases in which parents, whether still living
together or divorced, sought conservatorships for developmentally disabled
children reaching the age of adulthood. The applicant might assert that the
neurodiverse child was incapable of engaging in routine life activities such as
cooking, cleaning, and shopping and still required the parent(s) to provide
maximum care for and control of the adult child.
A courtroom can be a difficult place to parse through and truly
assess ability levels and competence. Allowing the adult child to speak,
whether in the courtroom or in mediation, can help the parties gain new
perspectives on that young adult's abilities and desires. Even though she may
be socially challenged, we might learn that she is both verbal and self-aware.
In response to questions, she might tell her family that she would like nothing
more than to live independently, and we may find that she is
capable of doing so - with or without supportive services.
An adult child with special needs, such as someone on the autism
spectrum, should have access to regional and community resources designed to
provide needed support, including housing, transportation, and financial
literacy. Unless the individual for whom conservatorship was sought was truly
incapable of caring for herself, conservatorship would be unnecessarily
restrictive.
Conclusion
The courtroom can be a challenging place to resolve potential
conservatorship issues; mediation is an excellent place to do so. Away from the
adversarial climate of a courtroom, parties can listen to one another, seek
expert guidance, and create solutions that more effectively respond to their
concerns while respecting the autonomy of an impaired individual.
Through mediation they can reach agreement on important matters
in a confidential and supportive process over which they retain control.
Instead of relying on a court to make the decision - one that may be difficult
to revisit or revise - family members can arrive at a solution that
appropriately addresses their key concerns.
With the help of a knowledgeable mediator and appropriate
medical guidance, family members can find answers. Instead of branding one
parent a criminal and moving the other parent into protective care, they can
explore a range of options for both parents and identify a course of action
that helps both. In mediation, parents of an adult child with developmental
disabilities can agree upon a support plan that recognizes and respects their
child's rights and abilities.
These matters are often personal and painful; in mediation they
can be handled with care and sensitivity.
Submit your own column for publication to Diana Bosetti
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com