Family disputes are never pleasant, but they can be particularly problematic where a member of the family may lack mental capacity, and has granted a Lasting Power of Attorney (an LPA) to a relative. Such strife can be detrimental to the care and wellbeing of the vulnerable donor and can mean that decisions are not being made in their best interests.
Issues can arise when a formerly senior figure in the family loses capacity, or where other family members struggle to divide their newfound responsibilities on behalf of the donor. It is situations like these which the OPG is hoping to improve by piloting a new mediation service at a time when the number of cases being referred to the OPG for investigation continues to rise.
A previous pilot of a telephone mediation service was promising, however the lack of face-to-face contact was felt by mediators to be an issue and case numbers were lower than desired. The new scheme is limited to cases where all parties provide their consent to mediation, and it would not be offered where there is clear purposeful abuse where the case must be determined by the Court of Protection, or where a possible criminal element means police involvement is required.
It is reported that 20 cases have already been sent to mediation as part of the pilot, which will be continued until the summer. At that point, the evidence will be reviewed and a decision will be made as to whether a permanent OPG mediation service would be worthwhile. Whilst the OPG is funding the pilot mediations, a permanent service could be paid for from the donor’s assets, by the parties, or by the OPG’s fee income.
It is hoped that where the concerns about a vulnerable person are due to issues in the relationships around them, fixing those relationships should alleviate these concerns, without the need to remove an attorney. Mediation enables these reconciliations by removing the adversarial dynamic of winning or losing a dispute that litigation creates.
As well as this, mediation engineers a situation whereby family members can actually meet in person, which can often alone be enough to remind them that they all want the best for the vulnerable person. Indeed, OPG lawyers have reported that this often occurs when family members see each other outside the Court of Protection on the day of the hearing. Formalising such a meeting earlier can mean a matter is resolved before it ever gets to the doors of the court.
From the OPG’s perspective, not only could this reconciliatory approach benefits all parties involved, mediation is likely to be cheaper than going to court. It also provides OPG investigators greater flexibility; potentially reduce the number of cases that involve an application to the Court of Protection for specific performance or the removal of an attorney.
Overall, it seems that by providing an alternative to the win/lose dynamic of court proceedings, mediation could be a win/win option for donors of LPAs, attorneys and the OPG itself.
For more information contact the London will, trust and estate disputes team.
Our investigations often find family disputes can increase the risk to someone who may lack mental capacity. Although there is no evidence of abuse in most of these cases, family disputes do sometimes mean that not all decisions are being made in the donor’s best interests or are having a negative effect on the donor’s care, health or wellbeing.