Mediation of family care disputes requires more than a one-size-fits-all approach

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.