By: Robert J. Shanahan, Jr. Esq.
Collaborative Law has been mainly used and developed in the Family Law arena, but it was never intended to be limited to Family Law. Collaboration, by attorneys, with accountants, physicians, social workers and others, has been happening in other legal fields. The reason is clear: the same thing that makes Collaborative Law useful in matrimonial cases is also present in Elder Law and other legal fields: a dispute among FAMILY.
The principles of litigation advocacy, and the actual litigation process itself, have a demonstrated negative impact upon individual family members, and the family as a whole. It is easy to see why. Good “representation” and “zealous advocacy” require attorneys to assert positions during the case which are emotionally painful and injurious to family relationships. In effect, what the litigation process does is “pour gasoline”, continuously through the process, on old wounds, stoking emotions and resentments. The toll on the individual family members and their future ability to peacefully resolve issues with each other is large. If you do not believe me, talk to any family law practitioner about post-divorce practice.
Obviously, litigation involving family occurs not only in matrimonial practice. Litigation over the guardianship of a parent, care and placement of an elderly parent are equally damaging to the future ability of the family to function, or even exist. Given the increasing numbers of the elderly in our society, these issues are, and will continue to be brought before us. Why can’t the successes of the Collaborative practice be visited upon Elder Law?
COLLABORATIVE ELDER LAW
In a family law case, there is a husband and a wife, and, possibly, children. Elder law involves these same people, just that the roles are reversed. Where family proceedings may involve the best interests of the children by the parents, elder law usually focuses on the parents’ needs by the adult children. Litigation will have the same negative impact upon the family members in the elder law situation as in the family law situation. The only difference may be that in the elder law situation, issues involving the adult children will arise along with issues involving the parents. Litigation could leave the family, with elder law issues, irreparably torn and damaged. They will be unable to resolve future issues peacefully. We, as attorneys, must tread lightly in these family situations.
The Collaborative Process offers Many Solutions
A properly trained mediator may get all of the children in one room and return the focus to the real issue at hand: mom or dad’s care.
If the parties need additional help in being able to “talk”, counselors or psychiatrists can be brought in. (Although many clients believe lawyers are, in fact, psychiatrists, we are not…Although I am getting really good at picking out psychiatric issues after 28 years of practice).
If finances or accounting are issues, accountants or financial planners can be brought in. (I deliberately chose to be a lawyer so that I did not have to do math).
(How many times has something like this come into your office….?)
Four children; one mom. One daughter has been acting as Power of Attorney for several years. There is another daughter who lives in California and has had nothing to do with Mom for years. Mom starts to take a turn for the worse. Suddenly, the California daughter shows up in NJ, has Mom (who is incapacitated) sign a new Power of Attorney to herself and starts moving money around. When confronted, she makes accusations of theft, misappropriation, injury to mom, etc. by her other sister who has been handling things for years. California daughter then hires an attorney hoping to file for guardianship.
A contested guardianship, requiring motion practice, discovery, depositions and trial, will pit all four siblings against one or all of the others. It will get nasty and Mom’s care will get lost in the shuffle. After the proceedings, the four will probably not to speak to each other ever again. Further future issues involving Mom and her care will we fought over as well. This family will never be the same.
Instead of proceeding to court, why not step back? Let’s find out what the issues are, re: MOM.
Hire a geriatric care manager to find out what kind of care mom needs and obtain local placement recommendations?
Have a social worker talk to all of the parties about care, cost of care, and payment options.
Mediate the other ancillary issues such as visitation, location, and setting the ground rules for future communication and decision making.
© Shanahan & Voigt, LLC 2014
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services.