Can lawyers help extricate their clients from nasty multi-issue guardianship litigation?
On March 6, 2024, PBP lawyer Alex Procope will discuss strategies on how lawyers can do so during his and Arthur Fish’s presentation “Dealing with High Conflict Families and Alternatives to Contested Hearings” at the Law Society of Ontario’s The Annotated Guardianship 2024 program.
Below is a brief explanation of why multi-issue guardianship litigation is challenging and a highlight of strategies Alex will elaborate on.
Why are multi-issue applications challenging?
The challenge with multi-issue litigation under the Substitute Decisions Act, 1992 (Ontario) (SDA) is the eruption of additional procedural and factual issues where each new issue impacts the status of other issues, requiring them to be revisited. What results is confusion and delay.
For instance, guardian applications in themselves have various issues that the judge will be required to consider, such as the capacity of the allegedly incapable person, the need for the appointment of counsel for the person, and the content of the proposed management and guardianship plans.
Additional issues commonly added to guardian applications include requests that powers of attorney be declared invalid, attorney removal for misconduct, and accounting demands. Such issues often result in complexities, including interim third-party disclosures, the desire of a party to wait for the position of the allegedly incapable person or a determination of his or her capacity before committing to their position, and ambitions of recovering ballooning legal costs.
Sadly, Alex has often found that the allegedly incapable person has died before a final hearing of the issues in too many cases. If a case does find its way to a final hearing involving older adults, the resolution may be of little practical benefit because the care and financial decisions have become defined by the health circumstances of the person due to their deteriorated condition.
What strategies make a negotiated resolution more likely?
Here are five strategies to help move multi-issue guardianship litigation forward:
- Deal with issues in an considered and orderly approach
Lawyers can provide an invaluable service of clarifying the issues that need to be dealt with first and in relation to other issues.
The capacity of the person may seem at first blush to be a priority issue to determine; however, capacity assessments are an intrusive and demeaning process. Well-intentioned parties may not want to drag their allegedly incapable loved one through these steps if it can be avoided.
If an adverse party does not cooperate with adding structure to allow issues to be dealt with in an order that makes sense, judges may impose such a structure on the litigation.
- Obtain independent confirmation of wishes early
Guardianship law is peppered with requirements that the wishes of the person be abided by or considered. These wishes can also help the parties focus on the allegedly incapable person rather than their personal views.
There is tremendous benefit to obtaining independent evidence of the person’s wishes, which will be more useful to the court than the self-serving hearsay of another party.
- Mediate around capacity
Simply put, the legal issue of a person’s mental capacity cannot be mediated; however, presumptions of capacity, abandonment of applications, and consent orders for direction can provide paths to resolution that do not require a court determination of a person’s legal capacity.
Ideally, the lawyers would have ranked their client’s interests or goals in the litigation and, if applicable, shared them with the mediator so that areas of mutual agreement can be identified and can form a foundation of settlement discussions.
Arthur Fish will be discussing why an “interest-based” mediation tends to work. This approach requires the parties to think about where their interests in the dispute truly lie and how those interests intersect or conflict with those of the opposite parties. It offers a structured approach to bring “all the parties into a more reliable contact with the reality of the dispute in which they are engaged” and “imposes a structured approach to resolution on people who are otherwise unable to go about resolving a dispute in an orderly and fair way.”
- Explore alternatives to guardianship
Guardianships cannot be ordered if there is some less intrusive alternative to guardianship such as another type of subsitute decision-maker. These alternative options are many and will depend on the situation, including the roles of other people involved. Legal advice is strongly encouraged for anyone considering or involved in guardianship. Legal advice is especially helpful when consideration what alternative approaches are worth pursuing and when to do so.
- Facilitate access to visits or information
A lawyer’s role in facilitating access to visits or access to information can be a highly productive first step in building a framework for resolution.
For instance, where there has been isolation of a potentially incapable person, it can make a tremendous difference to the isolated family member or friend to gain access. Re-establishing contact may also affect the wishes of the allegedly incapable person such that they accept ongoing contact.
Where there is refusal to share financial or personal health information (e.g., citing privacy concerns), suspicions of other family members may inflame the dispute. Direct access to financial and personal health information can alleviate the concerns of a suspicious party and provide an independent professional statement about the allegedly incapable person’s situation and needs.
Multi-issue guardianship litigation can result in some of the most difficult cases to resolve or bring to a hearing. Nevertheless, where they can be tamed and the focus brought fully on the allegedly incapable person, lawyers can provide a tremendous service to clients and these families in serious crisis.
If you are looking for a lawyer to assist with guardianship disputes, contact Perez Bryan Procope LLP at 416-320-1914 or contact@phplawyers.com.