All issues which touch on the life of a mentally incapacitated person can be the subject of mediation, including financial and property disputes but often concern quality of life issues, such as deciding where a family member should live, whether they should have particular medical treatment, all of which are emotive issues for family members trying to decide what is in the best interests of their loved one.
Examples of cases which may be mediated:-
- disputes within a family as to who should be appointed deputy to look after the financial affairs of a family member who has lost capacity;
- parties objecting to the terms of a statutory will;
- challenges to Lasting Powers of Attorney;
- management of assets when a person loses capacity and moves into residential care;
- disputes as to where an incapacitated person should reside;
- decisions about contact arrangements between an incapacitated person and their family/friends
- decisions on how to dispose of a person’s business after they lose capacity and can no longer operate the business
- decisions on the type or quantity of care a person should receive,
- decisions on whether medical treatment is in the incapacitated person’s best interests
The benefits of mediation
- Mediation is cheaper and less stressful than court proceedings. Court proceedings often involve a detailed, lengthy process utilising solicitors and barristers. Evidence has to be prepared and witnesses may well be other family members. It is an adversarial process, whereas mediation is a process of negotiation and conciliation.
- Court of Protection disputes often involve family members who have a long term relationship to protect, in common with the professionals involved such as social workers, who have to work with family after the dispute is resolved. Court proceedings can irrevocably damage those relationships making the future position difficult for all concerned.
- For statutory authorities, such as local authorities, there are clear financial benefits to mediating rather than litigating a dispute which is significant given limited budgets. More importantly, mediation signals a clear intention to work together to solve issues and avoid conflict.
- For responsible authorities it is important to actively consider mediation as an alternative to court proceedings. The Mental Capacity Act Code of Practice states that it is in everybody’s interests to settle disagreement and disputes quickly and effectively, with minimal stress and cost. The MCA Code of Practice states that some disagreements can be effectively resolved by mediation.
If you are considering mediation and would like to speak to our trained mediator, telephone us on 0161 871 3680.
