Mediation in Guardianship Proceeding Can Be Effective, But Raises Questions

FEBRUARY 8, 2016 VOLUME 23 NUMBER 6

Sometimes court proceedings are necessary in order to resolve differences of opinion — but almost everyone recognizes that it is good to seek resolution by a simple agreement when the parties can resolve their differences outside court. Mediation, for instance, is a great way to resolve many legal disputes. The parties to a lawsuit (or a potential lawsuit) meet with a professional mediator, and they discuss (either in separate sessions or, sometimes, in a common meeting) how they might work things out short of a court hearing. The result can be positive, and is almost always less expensive than a full court process. If a mediation has been handled particularly well, both parties (or all parties, for sometimes there are multiple positions being espoused) think they got less than they really wanted but more than they might have gotten if the case had gone to trial.

But what about guardianship (and conservatorship) proceedings? How can someone who is alleged to be incapacitated participate in mediation? Assuming the mediation is successful, how can someone who lacks legal capacity even agree to the settlement reached after mediation?

Because of the particular nature of guardianship and conservatorship proceedings, it can sometimes be impossible to enter into a meaningful mediation. One other problem: after a court hearing appointing a guardian or conservator, the legal fees of the petitioner (the family member or professional bringing the action) and the subject of the proceeding are both usually paid from the subject’s assets. But how will the cost of mediation be shared, and what incentive does everyone have to participate?

Notwithstanding these problems, guardianship mediation can and does work. At Fleming & Curti, PLC, for example, we frequently encourage mediation, whether we represent the family member petitioning, the family member objecting, or the subject of the proceedings. Mediation can result in a less-restrictive outcome (perhaps the subject of the proceedings could create a trust, or sign a power of attorney, for example), and gives the subject of the proceeding a much clearer voice in making decisions (as, for instance, when the subject objects to the proceedings — but particularly objects to the possible appointment of one family member).

But guardianship mediation still can be problematic. A recent Florida case showed why that can be.

Arnold Gabriel (not his real name) is a paranoid schizophrenic living in Florida with his aunt. He knows that he has mental health issues, but he thinks he gets along pretty well with the help of his aunt and his cousin, Linda Freeman. But Arnold’s brother Walter does not agree — he thinks that Arnold is at risk in the community, and that someone needs to be monitoring his condition and care at all times.

Walter filed a petition with the Florida courts seeking to be appointed as guardian of Arnold’s person — he hoped to be given authority to determine Arnold’s physical placement, and he thought Arnold probably needed to go to a state facility. Arnold disagreed, and so did cousin Linda. Linda filed a counter-petition, seeking to be appointed as guardian of both the person and property (what we in Arizona would call conservator) over Arnold. The Florida court set a hearing on the competing petitions.

Meanwhile, the three parties and their attorneys agreed to try mediation. They set a time and met with a mediator, and everyone agreed to try a less restrictive alternative. Walter’s petition for guardianship of the person, and Linda’s petition for guardianship of the person and property, would both be dismissed. Linda would act as Arnold’s agent for both medical and health decisions, and both she and Arnold would agree to share medical and financial information with Walter so that he could monitor his brother’s care and condition. They also agreed that Arnold would be re-evaluated by a neutral care manager every six months to see if his care needed to be reviewed. Arnold and Walter would agree to communicate better about Arnold’s status and condition.

Both Walter and Linda dismissed their respective petitions, and things appear to have gone well for about a year. Then Arnold decided not to share information with his brother, and filed a court proceeding seeking a determination that the agreement was void and unenforceable.

Arnold claimed that he had felt pressured to enter into the agreement out of fear that his only alternative was to be committed to a state mental facility. Besides, he and Linda argued, Arnold lacked the mental capacity necessary to enter into an enforceable agreement. One piece of evidence showing he lacked the necessary capacity: the court evaluation undertaken in connection with the initial guardianship petition had resulted in a determination that he lacked capacity.

The Florida trial judge granted Walter’s motion for summary judgment, ruling that the mediation agreement was enforceable and Arnold would need to live up to it. Furthermore, the court ordered that Arnold’s estate should bear the legal costs incurred by Walter in pursuing the guardianship and enforcing the settlement agreement.

The Florida Court of Appeals upheld the trial judge’s ruling. There was no legal impediment to Arnold entering into the agreement, reasoned the appellate judges, because there had not been any court finding that Arnold was incapacitated. The trial judge’s interpretation of the agreement — and the award of legal fees — made sense in the circumstances. Gort v. Gort, February 3, 2016.

The appellate court noted that there is an earlier Florida case — Jasser v. Saadeh (Fla. App. 2012) — that appears to support the exact opposite holding. In that case, the mediation agreement had included a provision that the subject of the proceeding would sign a trust, and the trustee would manage her finances. The problem with that, said the appellate court in this later case, was that (a) the subject’s condition was dementia, not schizophrenia, and was therefore more related to her capacity, and (b) the issue in that earlier case was capacity to sign a trust, not capacity to enter into a settlement agreement.

Candidly, though, those distinctions have to be seen as difficult to support — the real issue, we submit, is whether the courts can be comfortable with an allegedly incapacitated person signing a given settlement agreement. Our position: the law should be made clear that the courts should support non-judicial settlement, and mediation in these difficult, emotional cases should be encouraged.