Mediation is a process by which parties can resolve a dispute on their own terms with the assistance of a neutral mediator to facilitate discussions. In typical estate and trust disputes, if mediation results in an agreement, the parties also agree to dismiss their lawsuit. After all, if a settlement is reached, generally there is no need to continue the litigation.
In guardianship and conservatorship cases, however, the parties must proceed to a hearing, even if they agree that a guardian or conservator is needed and they agree on who should serve in those roles.
A court will appoint a guardian if the proposed ward lacks the ability to make or communicate significant responsible decisions concerning his or her health and safety. The appointment of a guardian removes from the ward to right to make his or her own decisions about medical care, residence, and marriage. Similarly, a court will appoint a conservator if the proposed ward lacks the ability to make or communicate significant responsible decisions concerning his or her property. The appointment of a conservator removes from the ward the right to manage his own assets and enter into contracts or other business transactions.
In deciding whether to appoint a guardian or conservator for an adult, the underlying question is this: at what point and to what extent should a court infringe upon an adult’s right to self-governance in the interest of protecting that adult? Courts zealously guard each person’s right to autonomy, while recognizing that there are circumstances in which a vulnerable adult should be protected. Thus, parties involved in guardianship or conservatorship proceedings cannot simply present a mediation agreement to the court and expect the judge to rubber-stamp it. Instead, the court must hear evidence that a guardianship or conservatorship is necessary and that the appointment of the nominated persons to serve in those roles will be in the best interest of the ward.
Imagine that an elderly mother of three children has advanced dementia. She does not have a health care directive or financial power of attorney. The woman’s daughter, who lives with her, files a petition seeking to be appointed as guardian and conservator, claiming that she is the only child who cares about her mother. The woman’s two sons, each living in another state, object to the petition, claiming that the daughter is a spendthrift with substantial debts who should not be put in charge of their mother’s money. Despite their differences, the three siblings hope to avoid testifying against each other in court, so they attend mediation. Their mother, however, is not capable of participating. After listening and negotiating, they finally agree that the daughter will serve as guardian and the older son will serve as conservator. At a hearing on the daughter’s petition, the siblings present their agreement to the court. After hearing evidence that the mother is no longer capable of managing her medical care and finances and evidence about the agreement and suitability of the daughter and older son to serve, the court would likely appoint the daughter as guardian and older son as conservator.
In cases like that, a mediation agreement can result a hearing that is shorter and less contentious than it otherwise would have been, enhancing the potential for repairing family ties that may have been frayed by the dispute. If you are concerned about the potential for dispute over guardianship or conservatorship of a family member, please contact Baumbusch Law for advice.