Asset Protection 4/22/2017 ESTATE AND ELDER MEDIATION Presented by Donald D. Vanarelli, Esq. Certified Elder Law Attorney Accredited Professional Mediator Co-Founder, Elder Mediation Center of N.J. 2007 and 2008 NJ “Super Lawyer” in Elder Law and Estate Planning

Asset Protection 4/22/2017 “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser…in fees, expenses and waste of time.” Abraham Lincoln 1850

General and Specialized Mediation Asset Protection 4/22/2017 General and Specialized Mediation There are general rules of mediation, and specialized aspects that apply to different contexts. This presentation gives an overview of mediation in general, and then focuses on the specialized mediation practice known as Elder Mediation.

What is Mediation? Asset Protection 4/22/2017 Mediation is a process in which an impartial third party – a mediator – facilitates the resolution of a dispute by promoting voluntary agreement (or “self-determination”) by the parties to the dispute. A mediator facilitates communications, promotes understanding, focuses the parties on their interests, and seeks creative problem-solving to enable the parties to reach their own agreement.

Mediation Compared With Other Conflict Resolution Methods Asset Protection 4/22/2017 Mediation Compared With Other Conflict Resolution Methods Negotiation Mediation Private; Less Costly; Faster; Voluntary; Parties Free to Innovate; Parties Retain Control of Process; Helps the Parties to Maintain Relationships Arbitration Litigation Public; Expensive; Much Slower; Involuntary; Solutions Imposed by Arbitrator, Jury or Judge; Parties Abdicate Control; Destroys Relationships

Asset Protection 4/22/2017 Negotiation The disputing parties agree to talk to each other about their problems and try to reach a solution that is acceptable. No third party participation. Polarization makes the process difficult to initiate; the parties are often unable to overcome impasse.

Asset Protection 4/22/2017 Mediation An impartial third party not involved in the dispute helps the parties resolve their differences. Mediator is a manager of the parties’ negotiations who organizes the discussion of the issues to be resolved. Mediator does not render a decision, express an opinion about or evaluate the case for the parties.

Asset Protection 4/22/2017 Arbitration A third party, selected by the parties, makes a binding decision for the parties which is not appealable. Informal, less expensive and faster than a judicial proceeding.

Asset Protection 4/22/2017 Litigation Judge or jury renders a decision on all issues in dispute after a trial. The Court controls the process. Court proceedings are public, costly and time-consuming.

Asset Protection 4/22/2017 Benefits of Mediation AFFORDABILITY: Mediation services are typically much less expensive than other conflict resolution methods. TIMELINES: Mediation cases are usually resolved in an expedited manner. CONVENIENCE: Mediation cases do not present the logistical problems found in other methods of conflict resolution.

Benefits of Mediation (cont.) Asset Protection 4/22/2017 Benefits of Mediation (cont.) UNDERSTANDABILITY: Mediators are trained to set the participants at ease, to explain the mediation process and the mediator’s role in the process. PRIVACY: Mediation sessions are held in private so that the parties’ grievances or complaints are never made public.

Benefits of Mediation (cont.) Asset Protection 4/22/2017 Benefits of Mediation (cont.) EFFECTIVENESS: Nationally, the parties reach agreement in 75% to 90% of mediated cases. SATISFACTION: Participants report a high degree of satisfaction with the process and the results. The parties maintain control over the outcome.

What is “Elder Mediation”? Asset Protection 4/22/2017 What is “Elder Mediation”? Elder mediation is mediation of any conflict that involves elders, their family members, or others in their lives. The individual who first contacts the mediator may be, but often is not, the elder involved.

Goals of Elder Mediation Asset Protection 4/22/2017 Goals of Elder Mediation Elder Mediation provides a forum for family decision-making to achieve the following goals: To hear the concerns of the elder adult, the service provider or the family, and to develop a plan that will address those concerns in the most positive and practical way.

Goals of Elder Mediation (cont.) Asset Protection 4/22/2017 Goals of Elder Mediation (cont.) To provide a forum for siblings to discuss how they will share the responsibilities for care of their parents. Mediation can help families discuss the division of labor and the management of finances.

Goals of Elder Mediation (cont.) Asset Protection 4/22/2017 Goals of Elder Mediation (cont.) To allow families to create workable and mutually acceptable solutions to their difficult disputes. To develop communication strategies to enable families of elders to successfully work together to make important decisions in the future. To avoid litigation of family disputes that have reached the point where court proceedings have begun or have been threatened.

Overview of Issues in Elder Mediation Asset Protection 4/22/2017 Overview of Issues in Elder Mediation The elder mediator is familiar with and capable of dealing with a variety of issues, including: Housing/living arrangements Caregiving Healthcare planning Financial management Estate planning & probate matters Medical treatment Guardianship/Conservatorship

Overview of Issues in Elder Mediation (cont.) Asset Protection 4/22/2017 Overview of Issues in Elder Mediation (cont.) Consumer issues Social life and activities Spirituality and aging Ongoing relationships Family wealth issues

Most Common Issues Disputes among adult siblings about parents. Asset Protection 4/22/2017 Most Common Issues Disputes among adult siblings about parents. Financial decisions: How money will be spent or invested and who will be involved. Residence decisions. Family business issues Family wealth issues: Selling the family home or other valuable assets.

Most Common Issues (cont.) Asset Protection 4/22/2017 Most Common Issues (cont.) Family wealth issues: Inheritance disputes and estate planning issues. Medical treatment decisions. Guardianship and post-appointment issues. Caregiving role reversal.

Characteristics of Elder Mediation Asset Protection 4/22/2017 Characteristics of Elder Mediation Rarely only one issue involved Usually multi-party Mediator concern for wellbeing of elder - Focus on self-determination and informed consent - Preserving the elder’s autonomy Courtesy of Elder Decisions/Agreement Resources, LLC Ph.: 617-621-7009 www.Elderdecisions.com

Characteristics of Elder Mediation (cont.) Asset Protection 4/22/2017 Characteristics of Elder Mediation (cont.) Relationships continue into the future Relationships affect others in the family (nieces, nephews, grandchildren, spouses, etc.) Mediation often not an “end point” – ongoing decisions will follow - If elder stays at home: • Home services, caregiving, bill paying, driving/transportation Courtesy of Elder Decisions/Agreement Resources, LLC Ph.: 617-621-7009 www.Elderdecisions.com

Characteristics of Elder Mediation (cont.) Asset Protection 4/22/2017 Characteristics of Elder Mediation (cont.) - If elder moves to assisted living facility or nursing home: • How to pay? • Choosing a facility • Interacting with the facility administration - Eventually end-of-life, burial and funeral decisions Courtesy of Elder Decisions/Agreement Resources, LLC Ph.: 617-621-7009 www.Elderdecisions.com

Presenting Issues in Elder Mediation Asset Protection 4/22/2017 Presenting Issues in Elder Mediation Often triggered by current or anticipated changes in the circumstances of the elder, such as: Death of spouse Physical, emotional, or mental decline Financial concerns Health and safety concerns - Independence and self-determination vs. safety Courtesy of Elder Decisions/Agreement Resources, LLC Ph.: 617-621-7009 www.Elderdecisions.com

Presenting Issues in Elder Mediation (cont.) Asset Protection 4/22/2017 Presenting Issues in Elder Mediation (cont.) Second marriage or partner issues Caregiver issues and “swooping” Powers of attorney – who makes what decisions Residence and long-term care decisions Financial planning and tax issues Estate planning Courtesy of Elder Decisions/Agreement Resources, LLC Ph.: 617-621-7009 www.Elderdecisions.com

Presenting Issues in Elder Mediation (cont.) Asset Protection 4/22/2017 Presenting Issues in Elder Mediation (cont.) Considering selling the house and/or other valuable assets Inheritance disputes Medical treatment decisions and health care proxies Adult guardianship and less restrictive alternatives Post-appointment decisions (guardianship) Courtesy of Elder Decisions/Agreement Resources, LLC Ph.: 617-621-7009 www.Elderdecisions.com

Some Mediator Challenges: Family Dynamics Asset Protection 4/22/2017 Some Mediator Challenges: Family Dynamics Emotions Myths Superstitions Closely held prejudices Entrenched relationships Complicated role reversal Passivity Courtesy of Elder Decisions/Agreement Resources, LLC Ph.: 617-621-7009 www.Elderdecisions.com

Who Should Attend the Mediation? Asset Protection 4/22/2017 Who Should Attend the Mediation? The senior(s) Adult siblings Spouses Grandchildren Concerned friends Caregivers Pets Advocates or advisors: friend, geriatric care manager (GCM), lawyer, CPA/financial planner Courtesy of Elder Decisions/Agreement Resources, LLC Ph.: 617-621-7009 www.Elderdecisions.com

Exploring Capacity Capacity – a critical threshold issue Asset Protection 4/22/2017 Exploring Capacity Capacity – a critical threshold issue Capacity vs. competency Consider room for participation even if there is diminished capacity from a medical or legal perspective. Ask: What are the risks of the process doing harm? Do we define mediation as a “negotiation” or a “conversation”? – The capacity to reach an agreement is different from the capacity to have a conversation.

Asset Protection 4/22/2017 Standards of Capacity Testamentary Capacity - testator must recognize the natural objects of his bounty and the nature and extent of his estate on the date of will execution. Contractual Capacity - contractor must understand the nature of the transaction and consequences of his acts.

Asset Protection 4/22/2017 Standards of Capacity Donative Capacity - donor must understand the nature and effect of the transaction. Trust Capacity - grantor must have the capacity to contract and to donate property. Power of Attorney/Living Will Capacity - requires the capacity to contract.

Capacity Assessment Assume capacity first Asset Protection 4/22/2017 Capacity Assessment Assume capacity first Evaluate capacity by assessing each party’s: - Understanding and description of problem - Memory - Reasoning - Ability to follow conversation - Responses to questions Don’t judge/make assumptions about anyone before talking with them Courtesy of Elder Decisions/Agreement Resources, LLC Ph.: 617-621-7009 www.Elderdecisions.com

When Senior (or Another Party) Requires an Advocate Asset Protection 4/22/2017 When Senior (or Another Party) Requires an Advocate Uphold self-determination and informed consent when: - Adjudicated incompetent - Extreme dementia diagnosed or suspected - Evidence of alcoholism or severe depression - Other serious health or capacity issues Courtesy of Elder Decisions/Agreement Resources, LLC Ph.: 617-621-7009 www.Elderdecisions.com

When Senior Does Not Directly Participate Asset Protection 4/22/2017 When Senior Does Not Directly Participate Uphold voluntary nature of mediation (Senior does not choose to participate) When siblings don’t want senior involved Note: Some mediators will only move forward if the issue does not directly affect the senior Ask – What are the risks of the process doing harm? Use of surrogate or advocate Courtesy of Elder Decisions/Agreement Resources, LLC Ph.: 617-621-7009 www.Elderdecisions.com

Obstacles to Including Participants in the Mediation Asset Protection 4/22/2017 Obstacles to Including Participants in the Mediation Sibling with parents’ power of attorney may feel no need to negotiate No obvious deadlines or pending court dates Multiple stakeholders and constituencies Inertia or resistance to change - Leads to crisis mode decision-making - Delays decrease options and increase costs - Can put health and safety of senior at risk Courtesy of Elder Decisions/Agreement Resources, LLC Ph.: 617-621-7009 www.Elderdecisions.com

Obstacles to Including Participants in the Mediation (cont.) Asset Protection 4/22/2017 Obstacles to Including Participants in the Mediation (cont.) Being overwhelmed by multiple issues Family history and past relationship patterns – “I just can’t talk to him about anything. I never could.” Fear of emotions surfacing during mediation – “opening a can of worms” Cost of mediation Misconceptions about the process Courtesy of Elder Decisions/Agreement Resources, LLC Ph.: 617-621-7009 www.Elderdecisions.com

The Elder Mediation Process Asset Protection 4/22/2017 The Elder Mediation Process The elder mediation process proceeds in four stages: Stage I – Preparing for Mediation Recognizing the Problem. Choosing the arena – mediation, arbitration or litigation. Determine whether the case is appropriate for mediation. Selecting the mediator. Intake – Pre-mediation interviews of the parties to determine: Which persons should attend the mediation Whether all parties are capable of participating -Involvement of geriatric care manager for assessment and evaluation.

The Elder Mediation Process (cont.) Asset Protection 4/22/2017 The Elder Mediation Process (cont.) Stage II – Initiation of the Process Mediator’s Opening Statement. Participant’s Opening Statements.

The Elder Mediation Process (cont.) Asset Protection 4/22/2017 The Elder Mediation Process (cont.) Stage III – The Heart of the Process Fact Gathering and Issue Identification Define Common Issues Joint Discussion Developing Options – Brainstorming Bargaining Caucus or Private Meeting

The Elder Mediation Process (cont.) Asset Protection 4/22/2017 The Elder Mediation Process (cont.) Stage IV – Resolution 1. Settlement 2. Drafting the Agreement -Reflects all agreements reached in mediation -Reviewed by the parties’ attorneys

Issue Identification and Fact Gathering Asset Protection 4/22/2017 Issue Identification and Fact Gathering Each party gives his or her version of the problems at issue without interruption Mediator gives a summary of each party’s concerns after the party has spoken After all have spoken, the mediator attempts to identify the common issues presented

Asset Protection 4/22/2017 Joint Discussion Allows the parties to express their feelings and emotions to each other in a productive and positive manner. Allows each party to direct questions to and answer questions from the other party(ies). Fills in information gaps. Provides data useful to problem resolution. Allows the mediator an opportunity to hear each party and observe the parties’ interactions.

Asset Protection 4/22/2017 Generating Options Allows the parties to explore solutions which are mutually acceptable. Allows the parties to “brainstorm” – generate options to create their own solution, rather than have a decision imposed by a third party. Allows the parties to retain control. Allows the parties to move away from their original positions and focus on solutions. No party needs to commit to the options presented.

Asset Protection 4/22/2017 Bargaining The goal of the mediation process is for the parties, with the aid of the mediator, to structure mutually acceptable solutions.

Asset Protection 4/22/2017 Settlement Agreement Not all mediations warrant a written settlement agreement. Success in mediation is sometimes intangible (without a written agreement). Written agreements should be specific: WHO, WHAT, WHEN, WHERE, AND HOW. Reality test or “road test” the written agreement.

Asset Protection 4/22/2017 The Process: 3 Thoughts The process is designed to be flexible (parties may not proceed through every stage and stages overlap) The mediator is in control of the “process”; the parties are in control of the content of the mediation, and the resolution. It is the act of engaging in the elder mediation process that may lead the parties to resolution

Asset Protection 4/22/2017 Mediator Skill Set Listening and communication: mediator must be cognizant of the constant exchange of messages (verbal and non-verbal) which take place during a mediation session Active and Interactive Listening Modes Mediator must listen to the two parts of the message: Content/Substantive part + Affective/Feeling part

Mediator Skill Set (cont.) Asset Protection 4/22/2017 Mediator Skill Set (cont.) Empathy Mediator must be nonjudgmental: it is critical to listen in an objective fashion Mediator remembers that people are motivated by needs; ascertaining these needs is a part of the mediator’s role and skill Understanding of the law and awareness of options is key to moving the parties toward resolution Above all, PATIENCE (allow the process to work)

Mediating Guardianship Cases: The Nuances Asset Protection 4/22/2017 Mediating Guardianship Cases: The Nuances Two distinct issues at hand: question of capacity (whether a guardian should be appointed) and question of who should be appointed and the plan of care Broad spectrum of capacity: many gray areas Extent to which the alleged incapacitated person (AIP) participates in the mediation Role of counsel for AIP: Matter of M.R. Potential role of GAL (“patently absurd” or “undue risk of harm”)

Guardianship Nuances (cont.) Asset Protection 4/22/2017 Guardianship Nuances (cont.) Notion of “least restrictive alternatives” (i.e. conservatorship, limited guardianship, etc.) Multiple parties Sudden conflict (loss of capacity of a loved one) with very little, if any, prior planning by the family Fertile ground for reassertion of old family conflicts (conflict can be highly emotional)

Guardianship Nuances (cont.) Asset Protection 4/22/2017 Guardianship Nuances (cont.) Source of conflict may be from parties simply not knowing what to do; triggering need for option generation and use of the “neutral expert” Start with development of care plan and move backwards to the choice of surrogate Attorneys’ Fees (Fund in Court Rule and new Rules 4:42-9(a)(3)/4:86-4(e))

Mediating Probate Cases: The Nuances Asset Protection 4/22/2017 Mediating Probate Cases: The Nuances Often multiple parties Sudden conflict (i.e. unexpected death of a loved one or revelation of a previously unknown will) Parties often represented by counsel and arrive at mediation table after a lawsuit is filed Defining the estate (assets and liabilities); valuation of assets

Probate Nuances (cont.) Asset Protection 4/22/2017 Probate Nuances (cont.) Unique legal issues Undue influence and presumptions (case law) Breach of fiduciary duty Capacity to make a will vs. global mental incapacity Attorneys’ Fees (“Fund in Court” and new probate rules) Law of intestacy Effect of declaring will invalid (does it reinstate a previous will or intestate estate?)

Probate Nuances (cont.) Asset Protection 4/22/2017 Probate Nuances (cont.) Equitable remedies are broad (whatever the judge thinks is fair); consequently trying to anticipate how a case might be ruled on by the court can be very difficult Dealing with “minor” interests (do you need a guardian ad litem appointed?)

Asset Protection 4/22/2017 Defining Success Giving aging parents and other family members a voice even if they lack legal rights Helping families to create successful communication systems for the future Resolving some issues in mediation, anticipating that the family will continue to work as a team Providing a safe space for people to hear each other, to voice their interests, feelings, and to be heard Courtesy of Elder Decisions/Agreement Resources, LLC Ph.: 617-621-7009 www.Elderdecisions.com

New “Ethical Model” of Mediation Asset Protection 4/22/2017 New “Ethical Model” of Mediation It is the role of the mediator to guide the parties towards a “Principled Resolution” A Principled Resolution is one based upon the ethical principles of: Autonomy, Beneficence, Do No Harm, Fidelity and Fairness to All Although the “ethical model” may be applicable to all types of mediations, it may be especially important when working with elderly or disabled individuals

Asset Protection 4/22/2017 Ethical Model (cont.) Autonomy: the notion that every party has a voice in the process and parties not coerced; notion of “free will” in parties arriving at a resolution Beneficence: the notion that the parties are working towards a helpful and good resolution Do No Harm: the notion that parties will not be worse off as a result of the mediation and resolution Fidelity: the notion that the mediator is faithful to parties, the ethical principles and to the process Fairness to All: the notion that the parties have equal opportunity to participate in the process and to be heard

Our Mission Statement: The Ethical Approach to Elder Mediation Asset Protection 4/22/2017 Our Mission Statement: The Ethical Approach to Elder Mediation The Elder Mediation Center of New Jersey approaches dispute resolution based upon ethical principles: the recognition that the elder or disabled family member, who is often at the center of the conflict, is the most important participant; our core belief that the voice of the elderly or disabled person must be heard and respected if the conflict is to be resolved; the role of beneficence, or the commitment to do no harm in the process; the commitment to fidelity and faithfulness to clients and the process, which encourages family members to achieve creative solutions best suited for them; and respect of, and fairness to, all parties.

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