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elder law; guardianIn 2019, a court-system wide mediation program was announced as part of the Chief Judge’s Excellence Initiative with a mission to increase efficiency and preserve judicial resources through early intervention. While alternative dispute resolution (ADR) has been successful in Surrogate’s Courts, Article 81 guardianship proceedings present unique challenges relating to an alleged incapacitated person (AIP). Reference M. Radford, Is the Use of Mediation Appropriate in Adult Guardianship Cases?, Georgia State University College of Law Reading Room, Jan. 1, 2001. This may explain why presumptive mediation programs have not proliferated as widely in these guardianships as in the Surrogate’s Courts.

First and foremost, an Article 81 guardianship necessarily involves someone, usually an elderly person, alleged to be incapacitated. A preliminary consideration is the ability of the AIP to meaningfully participate in the mediation. The focus of an Article 81 is supposed to be on the AIP. However, all too often, the spotlight focus remains on the AIP’s family members and their entrenched positions about the AIP. To that end, even if a mediation results in an acceptable settlement, the question arises as to whether the alleged incapacitated person possesses the requisite contractual capacity to enter into the settlement agreement. There is the possibility of an AIP consenting to a guardianship; however, most often the AIP would receive a designation as a person in need of a guardianship (PING) and that consent can always be revoked. This factor does not lend itself to the type of certainty and permanent resolution that is the goal in other dispute resolution contexts.

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