Does your elderly client need dispute resolution?

Financial advisors are often among the first people to see the rumblings of conflict when it comes to their aging clients’ financial and family affairs.

That, says Susan Hyatt, makes financial advisors ideal gatekeepers for eldercare dispute resolution (EDR), a burgeoning professional service that combines dispute resolution and crisis management for the elderly.

Hyatt is founder and CEO of Silver Sherpa Inc., which helps the elderly and their families navigate the healthcare, caregiving, financial and legal landscapes of aging. The organization has recently teamed up with YorkStreet Dispute Resolution Group to offer EDR in the Toronto area. Together, they hope to provide a cost-effective way to help families find solutions to the disputes that often arise when family and money combine with stress and age-related disabilities.

Maybe, for example, an elderly parent has no power of attorney, leaving his children squabbling about how to proceed when Dad becomes suddenly incapacitated. Or maybe a brother has POA for his mother’s property while his sister, who lives with her mother and takes care of her, is the attorney for personal care—but the brother refuses to release funds to hire a live-in caregiver or put Mom into an assisted-living centre.

Those are just some of the horror stories that Hyatt and YorkStreet founder and CEO Paul Iacono suggest can be addressed through EDR. Their three-step process involves Silver Sherpa conducting an elder-care assessment and preparing an action plan, followed by a mediation session led by YorkStreet to discuss the plan and navigate any sticking points. Then, Silver Sherpa rolls out the action plan—including, where applicable, liaising with a client’s financial advisors—with additional mediation support from YorkStreet as necessary. The fee for this process is about $10,000, says Hyatt.

It’s a potentially valuable service for advisors as well as families, says CFP Peter Wouters, a Kingston, Ont.-based registered financial gerontologist and faculty chair of the Canadian Institute for Elder Planning Studies. Advisors, he says, are often hamstrung by rules around confidentiality and POA issues when it comes to effectively serving their aging clients, and could benefit from the services of trained mediators in order to craft a coherent communications network among the client, their family members and their professional advisors. Creating such a network, of course, requires the client’s permission to share information with all parties involved.

“Let’s assume that a person names children both equally as power of attorney. How do you know if you’re supposed to take instructions from one versus the other? What does an advisor do when the client is telling you one thing, one POA is saying something else, and the other is telling you do something quite different? What if the advisor doesn’t have permission to disclose important financial information that the caregiver needs to know?” It’s often far more effective, he points out, for a professional with specialized knowledge in conflict resolution and issues related to aging to resolve these questions then a financial advisor.

Elder mediation is quite common in the United States but less so in Canada, says Vancouver-based lawyer, social worker and mediator Joan Braun, who founded BC Elder Life Mediation in 2017 to provide specialized mediation services to older adults and their families. Advisors, she says, could be well served by establishing a relationship with a reputable mediator with experience in elder issues.

Certifications to look for

Common national mediation certifications include the Chartered Mediator certification through the Alternative Dispute Resolution Institute of Canada (ADRIC), or the Comprehensive Family Mediator certification through Family Mediation Canada. Some provinces also have certifications. In B.C., for example, mediators with a certain level of training and experience can apply to be listed on the Mediator Roster operated by MediateBC. Elder Mediation Canada offers the only elder-specific certification program in Canada.

More and more mediators, says Braun, are beginning to hang out a shingle for services related to elders. And while the expansion of elder-focused mediation is a good thing, she recommends inquiring about mediators’ credentials. Since anyone can call themselves a mediator, and since there’s little in Canada in the way of formal certification in elder training, financial advisors should ensure that any mediator they work with has both basic mediation training and specialized training on issues relating to aging and elders, including capacity, elder abuse and undue influence.

Disputes around eldercare tend to come up around transition points, adds Braun: a senior’s move from the family home to assisted living or a child’s home, a diagnosis or medical event like a stroke, the death of one spouse, divorce or remarriage.

And while there are financial aspects to all these decisions, financial advisors aren’t in a position to make personal and emotional decisions for clients. The family can create a workable plan through mediation, and then return to the advisor for implementation, with clarified lines of communication.

“These kinds of services,” says Braun, “allow the financial advisor to stay neutral and focus on their area of expertise while knowing that the client has the support to make decisions and plans that are hopefully in their best interests.”

EDR by the numbers

• In 2012, reports Statistics Canada, 5.4 million Canadians provided care to a senior family member or friend. The majority of caregivers looked after their parents or parents-in-law. Further, 33% of those helping a senior in a care facility and 29% of those living with a care recipient reported that caregiving responsibilities had caused strain with other family members.
• In the next decade, aging baby boomers stand to inherit about $750 billion, which will lead to a sharp increase in estate disputes and litigation.
• The 65+ population is growing approximately four times as fast as the total population.
• The Alzheimer Society of Canada reports that an estimated 564,000 Canadians were living with dementia in 2016; that number is expected to rise to 937,000 by the year 2031.