Thank you for sharing!

Your article was successfully shared with the contacts you provided.
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.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.