Published in The Lawyer’s Daily, May 18, 2018
By Paul Iacono and Susan Hyatt
A civil lawsuit involving families is sad and damaging, and can quickly degenerate into a pathological experience. We have seen it happen. And disputes between family members are even more destructive because valuable and important relationships are at stake. Unfortunately, interfamilial disputes are becoming more common with aging baby boomers in the process of passing a huge amount of wealth — $750 billion — to the next generation over the next 10 years.
Family eldercare disputes begin to surface when decisions must be made
about the physical and emotional care of an aging parent who can no longer look after themselves in their own home. A common scenario involves siblings, who have been appointed power of attorney for property and care, and what they want. They may not agree on the best course of action, so how do you get them on the same page?
Here are two examples of families that descended into legal turmoil.
The power imbalance
There were two siblings, a brother and sister, and their elderly mother suffering from dementia. Since her husband had died, the woman was being cared for by her daughter in the home. Both children had been appointed powers of attorney for care and property, but each had different goals. The daughter wanted the highest level of care, which was expensive, while the son wanted only adequate care so as not to deplete the assets of the estate. Arguments between the two escalated and their relationship deteriorated to the point where the sister developed a fear of her older, more aggressive brother and simply went along with the status quo.
While this was extreme, it is not unusual, especially now with increasing numbers of elderly people living longer and suffering ill health in later years.
Obviously, something had to be done to get the parties to talk and solve the problem. While every situation is different, de-escalating conflict through coaching can help, and a facilitated discussion of the issues at hand is a key step.
In this case, the daughter needed a conflict coach who could help her overcome the fear of her brother and develop a method of communicating with him. This way the two siblings could find a compromise solution representing the best possible result for their mother and still allow each of them to achieve their individual goals. The ultimate goal was preserving the family relationship. While the process may be easy to describe, it takes time and requires professionals who are uniquely skilled for the task.
Legal inequalities between powers of attorney
This example was even more difficult. Again, there were two siblings, but only one had been appointed the power of attorney for property and care. The sibling without it quickly sought legal help which led to litigation. This is the most pernicious kind of litigation because the litigants are spending someone else’s money.
Sometimes the parties wake up and smell the coffee only to realize that the funds are depleted and there isn’t enough money to care for the elderly parent who had set aside those funds for the long- term benefit of their children. It is a cruel irony.
This situation requires almost a complete mediation. The parties must work out a peace treaty to recover from their past experiences, and then move forward with an agreement each can live with, even though one sibling has no decision-making power. This can be accomplished through a facilitation process that ultimately leads to joint discussions and joint decision-making. It takes time and the sooner you start the process, the easier and more lasting the solution.
Those who are experienced in dealing with family disputes know that when people are in a state of disagreement, the longer they argue the more entrenched they become. And the harder it is to reach an agreement.
Mediators are trained in the art of de-escalating conflict. They can restore reasonable dialogue between argumentative siblings. In fact, a good mediator can resolve any kind of dispute. The mediation process is like water — it can assume the shape of any dispute and eventually lead to a consensus.
It all boils down to simple logic; an agreement is better than a resolution imposed by someone who is a stranger to the dispute.
Paul Iacono is the founding principal of YorkStreet Resolution Group, a panel of professionals focusing on mediation, arbitration, appraisal and neutral evaluations. Susan Hyatt is CEO of Silver Sherpa Inc., which provides crisis management and proactive planning services for the elderly and for their families. The two organizations have partnered to deliver Eldercare Dispute Resolution (EDR) services.