Presentation to the Canadian Bar Association, BC Branch ADR-Vancouver Section on March 13, 2012
- essentially a summary of Elder and Guardianship Mediation: A Report Prepared by The Canadian Centre for Elder Law, (CCEL Report No. 5), January 2012 (the “Report”)
- The Report is available online at http://www.bcli.org/ccel/projects/elder-and-guardianshipmediation
- Funded by the Law Foundation of BC, the Report is the first comprehensive report on elder and guardianship mediation in BC and Canada
- the Aim of the Report is to give practical assistance to those directly engaged in the field of elder and guardianship mediation in BC
- Over three years, all BC Law Institute staff members contributed to the research, design, management and execution of the Report, including Jim Emmerton, LauraWatts, Krista James, Joan Braun, Greg Blue, Kevin Zakreski, Emma J. Butt (the principal writer), and others
Elder and Guardianship Mediation Today in BC
- Elder and guardianship mediation are new and growing fields of practice;
- BC now has proposed legislation calling for mandatory mediation in adult guardianship matters;
- Mandatory mediation provisions were included in the major reform of adult guardianship and substitute decision-making legislation contained in the Adult Guardianship and Planning Statutes Amendment Act, 2007 (“Bill 29”)
Elder Mediation Defined
- The mediation of disputes arising in the context of aging
- One or more of the parties will be an older adult or the issues in dispute will be ones of particular significance to older adults
- The issues and parties are often intrafamilial, but can involve third parties such as housing providers
- Elder mediation tends to be multipartite and involve family and intergenerational dynamics
Elder mediation can involve the following issues:
- Family caregiving
- Health and personal care arrangements
- Estate and succession planning
- End-of-life care decisions
- Retirement planning
- Substitute decision making for health and personal care
- Substitute decision-making for financial
- Personal choices about daily living
- Standards of care in a care facility
- Problems with other residents in a care facility
- Inheritance expectations
- Home share and housing arrangements
- Adult guardianship and least restrictive alternatives
- Mental illness and dementia
- Safety vs. independence and self-determination – risk taking autonomy for the older adult
- Conflict with care providers
- Abuse and neglect
- Later life marriage and divorce
- Grandparent rights
- Family relationships and intergenerational/family disputes
- Holidays and visitation
- Benefits and insurance
- Long term care
Guardianship Mediation Defined
- the use of mediation in guardianship proceedings to resolve disputes related to the decision-making capacity of an adult
- While the respondent in a guardianship application is often an elderly person, adult guardianship is not restricted to the elderly and guardianship mediation is not exclusively a subcategory of elder mediation
- The involvement of a party with diminished cognitive powers or other physical or economic vulnerabilities means that guardianship mediation is often fraught with complex legal and ethical concerns for the mediator
Ethical Issues in Elder and Guardianship Mediation
Areas of ethical concern:
- Disability issues
- Impartiality/neutrality of mediator
- Power imbalances
- Ensuring capability of participants to mediate
- Who participates
- Self-determination of the participants & capacity
- Risk Management in terms of abuse, neglect and self neglect
- Conflicts of interest
- How to decide if mediation is appropriate
- Funding / Fees
- The necessity of legal advice or representation
- Mediator Competence, particularly in adult guardianship mediation
Suggested Questions for the Mediator to Assess an Individual’s Capacity to Mediate:
1. Can the respondent understand what is being discussed?
2. Does he or she understand who the parties are?
3. Can the respondent understand the role of the mediator?
4. Can the respondent listen to and comprehend the story of the other party?
5. Can he or she generate options for a solution?
6. Can he or she assess options?
7. Is the respondent expressing a consistent opinion or position?
8. Can he or she make and keep an agreement?
- The total number of seniors (adults aged 65 and over) in Canada is estimated to increase from 4.7 million in 2009 to 9.9 million by 2036 and 11.9 million by 2061
- The percentage of seniors in the population is projected to increase from 14% in 2009 to between 24% and 28% in 2061
- The “older old” cohort of seniors aged 80 and older is projected to more than double, from approximately 1.3 million in 2009 to 3.3 million by 2036 and will nearly quadruple in size to 5.1 million by 2061
- Canadian services for older adults have historically been limited and there has been inadequate preparation for the “silver tsunami” facing social systems, including the health care, social services and legal systems
- while most older adults retain capacity throughout their lives, there is a strong correlation between age and Alzheimer’s disease or other related dementias and cognitive impairment
- By 2038, the number of Canadians with dementia will increase to 2.3 times the 2008 level, from 480,618 (1.5% of the Canadian population) to 1.1 million people, to 2.8% of the Canadian population
- “a single or repeated act, or a lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harms or distress to an older person”
- Prevalence of elder abuse thought to be around 3-5% of seniors
- types of elder abuse: 1) physical abuse; 2) financial abuse; 3) psychological or emotional abuse; 4) sexual abuse; and 5) neglect
- studies show that the most common perpetrators of abuse are family members, and most often adult children or spouses
- Financial abuse is of particular relevance in the context of guardianship matters
- typically involves the integration of multiple areas of law with the goal of providing legal services that address some of the specific and complex legal issues affecting older persons
While the following list is not exhaustive, elder law is considered to involve the following:
- Estate law and succession planning (including inter-generational transfers of wealth)
- Substitute decision-making for health care (including advance care planning documents such as “living wills”, advance directives, representation agreements, powers of attorney for health and personal care, etc.)
- Substitute decision-making for financial affairs (powers of attorney)
- Abuse / Neglect / Self-Neglect
- Scams, frauds, financial theft or abuse of a financial instrument (such as a power of attorney)
- Health law (including health care consent)
- Risk management and personal care choices (smoking, drinking, living at risk, etc.)
- Adult guardianship (including least restrictive alternatives to guardianship)
- Family caregiving
- Inter-generational / family disputes
- Real estate law
- Housing and tenancy
- Access to and/or sufficiency of public or private benefits (home care, pensions, disability insurance, long-term care insurance)
- Long-term care / nursing homes
- Administrative law
- Disability law
- Employment law
- Undue influence
- Later life marriage, divorce
- Driving and activities of daily living
- Breach of trust
- Medication use / misuse / over-prescription
- Grandparents’ rights and childcare
- While the issues noted above can affect any person across the life course, they may disproportionally affect older adults due to specific needs, dependencies, limitations of choices and social vulnerabilities
- health concerns, dependency, fluctuating capacity, and family dynamics are common issues that hinder the effective resolution of elder legal issues
Elder Law & Capacity
- Central to elder law are the twin issues of capacity and substitute decision-making
- The definition of capacity and procedures for assessing capacity vary across jurisdictions
- Substitute decision-making is a broad term that includes powers of attorney, health care consent, guardianship and personal care choices
- As with capacity, the definition of substitute decision-making and protocols for its components vary by jurisdiction and substitute decision-making legislation is evolving
- Capacity may be defined as the ability of an individual to understand information relevant to making a decision and appreciate the consequences of making such a decision
- The modern concept of capacity takes into account fluctuating capacity and “shades” of capacity
- The threshold of capacity differs, depending on the decision to be made.
- Eg, the threshold for marital capacity is not equivalent to that for testamentary capacity or for health care consent
- Modern laws on capacity acknowledge that an individual may be temporarily incapable or alternate between capable and incapable states.
- A health condition, a lapse in medication, or a chronic addiction can impair capacity for a period of time.
- Capacity is integral to substitute decision-making legislation. In order to give rights to a substitute decision-maker (“SDM”), through a power of attorney or other instrument, an individual must be legally capable.
- In order to take away rights from an individual, as in the case of guardianship, he or she must be found to be legally incapable.
- Incapability is a legal determination.
- More recent thinking indicates that linked to capacity and substitute decisionmaking are the concepts of autonomy and least restrictive alternatives.
- Every person has the right to make his or her own decisions, until it is determined that he or she is incapable.
- If the right to self-determination is compromised by incapacity, the incapable individual must retain the maximum rights possible – the least restrictive alternative to complete autonomy.
Adult Guardianship Legislation Generally
- Guardianship of an adult (or “adult guardianship”) is the result of a court determination that an adult is legally incapable of making decisions about his or her personal or financial affairs
- When a legal determination of incapacity is made, another person is given the decision making rights of the legally incapable adult, including health care decisions and consent, housing choices, and financial decisions
- In the past, mental incapacity legislation adopted an all-or-nothing approach – adults were either ‘fully capable’ or ‘fully incapable’ of making their own decisions
- However, in the past decade, modern guardianship legislation across Canada tends to espouse a ‘most effective, least restrictive’ approach, whereby a court-appointed substitute decision maker has his or her authority limited to the specific area of incapability
- The more recent modern guardianship regimes are founded on principles of individual autonomy, a ‘capacity-continuum approach’ and a respect for the allegedly incapable adult’s personhood.
- Mediation, for some aspects of guardianship matters, is a very recent, but arguably logical, outcropping of recent legislative developments in Canada
Adult Guardianship Law in BC
The Patients Property Act
- In BC, adults are presumed to have capacity and to be capable of making their own decisions respecting their person and their property
- The focus of the Patients Property Act is estate administration rather thanthe guardianship of the “patient”.
Section 1 the Patients Property Act defines a “patient” as:
a) a person who is described as one who is, because of mental infirmity arising from disease, age or otherwise, incapable of managing his or her affairs, in a certificate signed by the director of a Provincial mental health care facility or psychiatric unit as defined in the Mental Health Act, or
b) a person who is declared under this Act by a judge to be
(i) incapable of managing his or her affairs,
(ii) incapable of managing himself or herself, or
(iii) incapable of managing himself or herself or his or her affairs.
- Subject to this Act, incapability is a legal determination made on the basis of medical evidence.
- An adult declared to be legally incapable under the Patients Property Act is deemed incapable of making decisions with respect to their person (including health and personal care), their property (including legal and financial affairs), or both.
- The Act does not define capability or incapability.
- If an adult is deemed by the court to be incapable under the Act, the Act provides the court with the discretion to appoint any person as either: Committee of Estate, with the power to make decisions regarding the adult’s property; Committee of Person with the power to make decisions about the adult’s health and personal care; or both.
- As guardianship pursuant to the Patients Property Act is all-inclusive, the result of committeeship may involve a loss of all decision-making authority.
Adult Guardianship Legislative Reform in BC
- Adult guardianship law in BC is in a state of transition.
- A number of reports have been issued over the last decade recommending reform of BC’s adult guardianship legislation and a number of bills, with the potential to effect a major revision of BC’s guardianship system, have been proposed but never passed or proclaimed.
- Consequently, as noted above, BC’s Patients Property Act remains in effect.
- finally in 2007 the BC Legislature passed Bill 29, The Adult Guardianship and Planning Statutes Amendment Act, 2007, which introduced new statutory requirements for advance planning for substitute decisionmaking and adult guardianship.
- When the Bill 29 amendments to the Adult Guardianship Act come into force, Bill 29 will, among other things, repeal the Patients Property Act, and require mandatory mediation for adult guardianship matters in certain circumstances.
- On September 1, 2011, the new provisions dealing with advance planning for substitute decision-making, as set out in the 2007 amendments, were proclaimed in force. These changes provide options for incapacity planning, including personal, health and financial planning, by introducing new requirements for enduring powers of attorney, representation agreements and advance directives.
- The provisions related to court and statutory adult guardianship, including the mandatory mediation provisions, have not yet been proclaimed in force.
- As a result, the statutory adult guardianship scheme under the Patients Property Act remains in force and “BC possesses a new set of adult guardianship laws yet to be interpreted and applied by the courts.”
- “Bill 29 goes a long way toward creating a modern guardianship regime for BC. It redresses the paternalism of the Patients Property Act by repealing that statute and replacing it with more nuanced law.”
- In Bill 29, adults are referred to as “adults” rather than “patients”, and the focus of Bill 29 is on support and decision-making rather than on the protection of the adult’s estate.
- Bill 29 replaces the committeeship system of the Patients Property Act and creates three distinct types of guardians: property guardians, personal guardians and statutory guardians.
- Under this new statutory scheme, statutory guardians and property and personal guardianswill be appointed through two separate processes.
- Property and personal guardians are appointed by the court upon the court’s determination that an adult is incapable of making decisions related to his or her financial affairs, personal care or health care.
- “Personal guardian” refers to a person appointed by the court under the Act to make decisions regarding an adult’s personal care or health care.
- The decision-making authority of a “property guardian” appointed by the court under the Act is limited to making decisions regarding an adult’s financial affairs.
- Bill 29 introduces the concept of a statutory guardian under the new Part 2.1 of the Adult Guardianship Act. Unlike personal and property guardians, statutory guardians will not be appointed by the court. Rather, the Public Guardian and Trustee, upon the recommendations from health care providers, may determine whether a statutory guardian must be appointed to help manage an adult’s financial affairs. A statutory guardian cannot be appointed if a property guardian is already in place.
- The appointment of a statutory guardian requires an assessment of incapability. Pursuant to Part 2.1, section 32(1), if a health care provider has reason to believe that an adult that an adult may be incapable of managing his or her own financial affairs, the health care provider may request that a qualified health care provider assess the adult’s incapability. A “qualified health care provider” is defined in Part 1 as “a medical practitioner or a member of a prescribed class of health care providers”.
- If after assessing the adult the qualified health care provider determines that the adult is incapable of managing his or her financial affairs, the qualified health care provider may report the adult’s incapability to a health authority designate (s.32(2)). Upon receipt of a report of an adult’s incapability, the health authority designate may issue a certificate of incapability in respect of the adult, a copy of which must be forwarded to the Public Guardian and Trustee who may accept or reject the certificate (s.32(3)-(5)).
- If the certificate is accepted, the Public Guardian and Trustee becomes the adult’s statutory guardian (s.32(5)).
- Pursuant to section 33(1), on becoming an adult’s statutory property guardian, the Public Guardian and Trustee has all the powers of a property guardian under the AdultGuardianship Act.
Bill 29 & an Application for Guardianship
- Pursuant to the proposed amendments in Bill 29 to Part 2 of the Adult Guardianship Act, section 5 provides that, “[a]ny person may apply to the court for the appointment of a personal guardian, property guardian or both, for an adult.”
- As part of the guardianship application, the applicant must provide the court with medical reports, showing that the adult who is allegedly in need of a guardian lacks the capacity to make certain types of decisions.
- The applicant must submit two assessment reports provided by qualified health care providers, who use prescribed capability assessment procedures, which describe the extent to which a person is incapable of making decisions about personal care, health care or financial affairs.
- In addition to the assessments reports, the applicant must provide the court with a guardianship plan.
- A guardianship plan outlines how the proposed guardian will be responsible for certain types of decisions, as well as any specific tasks to be done on behalf of the allegedly incapable adult.
- The applicant must also provide a copy of any representation agreement, power of attorney, enduring power of attorney, or advance directive, made by the adult, that is known to the applicant.
- A copy of the capacity reports, guardianship plan and substitute decision-making documents must be served on the prescribed parties. According to the Bill 29 amendments to Part 2 of the Adult Guardianship Act the applicant must provide a copy of the application, the accompanying documents, and any other prescribed material at least 30 days before the date set for hearing to the following parties:
- the adult who is subject to the application;
- the spouse, unless the marriage or marriage-like relationship has ended, and adult children, if any;
- if the adult has no spouse or adult children, another near relative of the adult;
- the adult’s guardian, if any;
- the adult’s proposed guardian, if not the applicant;
- the Public Guardian and Trustee, if not the applicant;
- any person known to the applicant to be the adult’s attorney or representative;
- any other person that the court may direct.
- Under the proposed scheme, the Public Guardian and Trustee will have notice of every application for guardianship. Further, the court has the authority to direct that an applicant notify any other parties who may have an interest in the application.
Bill 29 & Mandatory Mediation Provisions
- In Bill 29, the proposed amendments to Part 2 of the Adult Guardianship Act require mediation in guardianship matters, as follows:
6(1) If a guardianship application is made under section 5 and there is a dispute about:
(a) whether or not the adult who is the subject of the application needs a guardian;
(b) who the proposed guardian should be; or
(c) the adequacy of the plan for guardianship,
a hearing under section 7 must not proceed unless mediation is conducted in accordance with the regulations, or unless the regulations permit otherwise.
- A “hearing” under section 7 refers to the court hearing of a guardianship application made under section 5.
- A hearing may be attended by any person served with a copy of the adult guardianship application or any other person who files an appearance and whom the court agrees to hear.
- In a guardianship application hearing, the court must consider the application documents submitted under section 5(2), any agreement reached in mediation under section 6 and any written or oral comments made by the Public Guardian and Trustee.
Section 6(2) provides that certain disputes must not be mediated:
(2) The following must not be the subject of mediation under this section:
(a) whether or not an adult is incapable;
(b) the content of any written or oral comments submitted to the court by the Public Guardian and Trustee under section 7(2)(c);
(c) any prescribed matter.
“Any prescribed matter” refers to any matter that is expressly excluded from mediation by the regulations.
Bill 29 & Adult Guardianship Act Regulations
- As regulations have yet to be drafted, there remains uncertainty with respect to the “nuts and bolts” of how the mandatory mediation provisions proposed in Bill 29 will apply to contested guardianship applications, including but not limited to the structure of the mediation referral program/process in guardianship applications, applicable processes and procedures (legal and mediation), practice and training standards for mediators, etc.
- Once drafted, it is anticipated that the regulations will provide necessary guidance with respect to a number of issues that may arise in the guardianship mediation context, such as:
- what types of cases will be exempt from mediation,
- who must participate (and the nature or extent of this participation),
- the rights and duties of the parties, the court and the mediator,
- confidentiality of information;
- time limitations and procedural issues,
- costs and appropriate sanctions,
- qualifications of mediators, and
- when a matter may proceed to a hearing without mediation.
Elder & Adult Guardianship Mediator Training
- The development of elder mediation training and standards in Canada is in its early stages
- There is no uniform ethical code or code of professional conduct for mediators in Canada or the US
- There is consensus among stakeholders that specialized training is required for elder mediators and additional specialized training is required to effectively mediate adult guardianship disputes
Suggested training requirements for elder mediators:
- Minimum basic mediation training and experience
- Family dynamics and intergenerational issues
- Normal aging process (mental and physical aspects of aging plus myths of aging)
- End of life care
- Understanding the dynamics of grief and loss
- Ethics (self-determination, quality of process, capacity to mediate, power imbalance, ageism)
- Pre-mediation interviews and non-evaluative mediation
- Multi-party and complex mediation and who should participate
- Knowledge of relevant legal processes, legislative frameworks, agreement writing
- Self-determination and maximum participation (ensuring voice of older person in mediation, accommodation)
- Abuse and neglect
- Understanding capacity
- Cultural diversity and values – cultural awareness
- Health care issues
- Knowing community resources
- Recognizing legal and other issues outside one’s competence as mediator – when to refer to other professionals/resources
- Legal red flags
- Practice experience, ideally co-mediation and/or mentorship with an experienced mediator.
For mediators wishing to mediate adult guardianship cases, the following suggested additional training was identified:
- Guardianship law and process
- Ethics in guardianship mediation
- Dynamics of aging
- Importance of participation in mediation of respondent in guardianship case
- Understanding capacity
- Diversity of culture and values – potential influence/impact on dynamics in
- Capacity to participate in mediation
- Self-determination, participation and accommodation
- Substitute decision-making
- Financial and non-financial alternatives to guardianship and least restrictive
- Power imbalance
- Role playing
- Practice experience – Co-mediation and or mentorship
Recommendations of the Report
The general recommendations made in the report are the following:
(a) Elder mediation requires specialized skills-based training and practical experience in addition to basic mediation training and experience;
(b) Guardianship mediation requires further specialized training and practical experience beyond the training and experience required for basic and elder mediation. It also requires familiarity with the law of adult guardianship;
(c) Mediators must determine whether all the parties to the mediation have the capacity to participate meaningfully, either unassisted or with support;
(d) Impartiality of the mediator does not mean the mediator must be passive. Mediators must ensure that all parties are able to be heard and communicate their wishes effectively. Mediators must be acutely aware of power imbalances, especially when elderly persons and persons with diminishing cognitive powers are involved, and prevent mediation from becoming a tool for coercion or undue influence;
(e) Pre-mediation interviews are crucial to successful mediation;
(f) Co-mediation is generally an ideal model for the multi-party and multi-issue milieu of elder and guardianship mediation if resources permit;
(g) In mandatory mediation, it is attendance that should be treated as mandatory. Parties to mediation should not be required to agree or settle.
In relation to court-connected guardianship mediation, the key recommendations of the report are:
(a) A court-connected guardianship program should initially be established as an evaluated pilot project;
(b) Institutional and policy support for the program from legislation, the courts, and government must be present for the program to succeed;
(c) A court-connected guardianship program should be designed through a collaborative process involving key stakeholders;
(d) Program policies should also be developed through a collaborative process;
(e) The program should have clear policies related to case selection and referral as well as dedicated, specially trained staff charged with screening and casereferral;
(f) The program should utilize a non-evaluative, interest-based mediation model (most experts recommended facilitative style mediation). Pre-mediation meetings are a necessary feature;
(g) Program mediators should be required to meet specialized training and experience requirements set by the program (including ongoing requirements for professional development);
(h) A program roster should be established similar to the BC Child Protection Mediation Roster and all program mediators should have to be members of the roster;
(i) Roster mediators should be required to adhere to an established code of professional conduct;
(j) The program should establish a process for responding to complaints about roster mediators;
(k) Program mediators should be private sector mediators hired on a contract basis;
(l) The administrators of the program should work with the private sector to expand training opportunities for mediators, such as establishing a guardianship mediation practicum similar to the child protection program involving supervision by,and co-mediation with, mentors who have substantial experience mediating in the adult guardianship context;
(m) The program should establish an Orientation to Guardianship Mediation training module (similar to the Orientation to Child Protection Mediation required by the Child Protection Mediation Program) that involves practice learning by means of mentored co-mediation with an experienced guardianship mediator;
(n) Promotional and educational activities about the program and the mediation concept in guardianship matters should be undertaken;
(o) The program should adopt a collaborative approach to promoting the program in the province by establishing institutional and government partnerships and obtaining support from Mediate BC and other provincial mediation organizations, the BC Supreme Court, as well as the legal community, including the Bar, CLEBC, and the Law Foundation of BC;
(p) The program should have full-time administrative support;
(q) Mandatory mediation should imply mandatory attendance at mediation, but not that parties are required to reach an agreement or settlement;
(r) Program policies should be developed pursuant to regulations and should address the following matters:
(i) individuals authorized to participate in mediation;
(ii) cases and issues appropriate and not appropriate for mediation;
(iii) rights and duties of participants in mediation;
(iv) confidentiality in mediation;
(v) matters that may be exempted from mediation;
(vi) costs and sanctions related to mediation;
(vii) representation for indigent parties, particularly in mandatory mediation where the indigent party is the respondent to a formal guardianship application;
(viii) training standards and requirements for program mediators.