Elder Law Mediation

Encompassing a broad range of issues

Elder Law Mediation

The Wills, Estate and Succession Act (the WESA”) came into force two years after new statutory requirements were put in place concerning advance planning, substitute decision making and adult guardianship. Stopping to consider, “WESA, one year later” (which is the theme for this issue of BarTalk) is also an invitation to be reminded of these and other changes to ensure that the field of elder law is considered as a whole.

The topic of “Elder Mediation” demonstrates the need to watch the forest and the trees.

Elder Mediation can encompass a broad range of issues, from very “legal” matters such as succession planning, substitute decision making and the distribution of estates, to more family systems based matters such as developing care plans for aging adults with declining health who wish to stay in their homes.

In other words, at one level, Elder Mediation is simply a dispute resolution mechanism whose time has come. It is the place where the demographics of an aging population and the increasing popularity of Alternative Dispute Resolution converge.

As legislative change has come to elder and estates law, two critical questions have arisen in the face of this trend, neither of which has yet been fully answered.

First, who is the elder mediator? Alternatively stated, should Elder Mediators, like Family Mediators, be subject to qualification and certification? Elder Mediation can involve law from a myriad of areas, including real estate, estates, family, insurance and health. Unique questions arise from working with one or more aging adults such as elder abuse and ageism, complex health issues, late in life marriage and the right to have sex in a care facility. Unlike most other mediations, elder mediations typically involve multiple parties and require work with “collaterals.” The relative complexity of Elder Mediation suggests that professional standards and education should inform an elder mediation practice.

Second, should the Elder Mediator have an official place in guardianship disputes? In 2007, the BC Legislature passed Bill 29, the Adult Guardianship and Planning Statutes Amendment Act, 2007. In the result, in 2011, the Adult Guardianship Act, the Health Care (Consent) and Care Facility (Admissions) ActPower of Attorney Act and Representation Agreement Act were, more or less, substantially amended.

One significant change proposed by Bill 29, however, has not happened. If the Bill 29 amendments to the Adult Guardianship Act had come fully into force, the Patients Property Act would have been repealed and the province would have a different legislative regime for determining how and whether to appoint a guardian over an individual’s affairs. The regime would require mandatory mediation of the adult guardianship issue in certain circumstances.

Whether Elder Mediators should be subject to certification or other regulation is a stand-alone question, but is also linked to the second question. There are concerns that guardianship mediation should not become mandatory until there are standards or mandatory training in this field. In the bigger picture, there are questions about whether “mandatory” guardianship mediation is a model of dispute resolution that should be included within guardianship legislation. The drafters of Bill 29 clearly felt one way about this issue, but the fact that the Bill has not been proclaimed in its entirety means that many disagree.

There is fairly universal opinion that the Patients Property Act is outdated and requires replacement. It also seems fairly clear that Elder Mediation is going to continue to grow as a practice area and to evolve to meet the demands of an aging population. How and whether the practice area will develop practice standards and play a role in the area of guardianship should be intentional and part of the ongoing review and discussion that takes place in the Elder Law community.