Hawaii Elder Law Attorney Suggests Alternative Approach to Yesterday’s Q&A: Mediation

Question:  “My mother is 91 years old and has Dementia/Alzheimer’s. She does not know how to read or write, but recently she apparently granted Power of Attorney for her finances to my elder sibling. This was done in secrecy and did not take the rest of the family into consideration. Now my sibling has taken over my mother’s house and her bank funds and has placed my mother in a nursing home where she is kept overmedicated.  I’m concerned about how something like this could have happened.  Is there anything I and the rest of my family can do now to have this Legal Directive reversed?

Answer:  This is a heart-wrenching scenario that is played out in countless families every day across America.  There is a legal approach to the problem that could be expensive, could worsen your current family dynamics, and could take longer than your 91-year-old mother has left.  It would involve securing medical opinions concerning your mother’s current capacity to sign legal documents (and, as precisely as they can tell you, when she lost legal capacity), appointment of a legal representative for your mother, and unwinding the asset transfers and other things your sibling has done.  The term used for the legal representative may be guardian or it may be conservator, depending on where you live.  You will need an experienced attorney in your State to guide you through the process and represent you in court.

Before you go down that road, consider bringing all of your siblings and other interested family members together to talk about what has been done and why.  The answers to those questions may surprise you.  More importantly, the family may find a way to move forward in a unified manner that meets your mother’s needs and at the same time preserves (or mends) family harmony.  You may find that a trained mediator can help your family members explain their positions and understand each other’s positions.  The mediator could be a pastor, a counselor, a lawyer, or a trusted family member or friend who may or may not fit into any of those categories.  If no one comes to mind, there may be a Neighborhood Justice Center or similar service in your area that can provide mediation services.  This is an alternative worth exploring, and, if it is unsuccessful, it will not prevent you from pursuing the kind of legal approach outlined above.

Scott A. Makuakane, Esq., CFP
Est8Planning Counsel LLLC
Honolulu, Hawaii  96813
State Coordinator of the national ElderCare Matters Alliance, Hawaii chapter

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