I have had a spate of mediations recently relating to parties in the latter stages of their lives. A number of issues arise in these situations, that mark them out as cases where extra considerations may need to be borne in mind at the mediation.
- When one or more of the parties are represented by someone acting under a Lasting Power of Attorney, they may have a limited authority to settle. Indeed it may be necessary to obtain the sanction of the Court of Protection to any Settlement Agreement.
- In reaching any such settlement, the Mediator’s usual mantra of the “soft costs of litigation” (time, effort, etc) are irrelevant. The Attorney has a duty to act in the best interests of the Donor of power, irrespective of how much time and trouble it will cost the attorney on a personal level.
- The capacity of an individual to still give some evidence or to form a view about a matter, notwithstanding the appointing of an Attorney, may be necessary to consider. It may be possible for someone still to have capacity regarding some of the important long-term issues while being incapable of recalling minutiae from the short term memory.
- The ability to achieve total closure may, depending on the circumstances, be severely curtailed by the possibility post death of a claim for example under the Inheritance (Provision for Family and Dependants Act) 1975 or the currently fashionable promissory estoppel doctrine.
- There may be issues of how the spending of diminishing assets on legal and associated costs or indeed as part of a settlement agreement may be viewed by the Local Authority when determining at what point they will fund care.
- The psychological issues at play are even more complex when none of the key protagonists are present. Those representing them under a Power of Attorney have duties to perform on their behalf. But they are still human, often closely related to the donor, and usually untrained in the difficult art of putting their own emotions, views and interests to one side (something a mediator is trained to do on a daily basis).
Ultimately, conflict takes its toll on anyone. But on those who are frail and in their twilight years its toll may be even harder. And those representing them do not have an open hand to deal as they might if it were their own conflict. They may further be burdened by the question “what would X have wanted if they were looking after this?”, to which the answer can only be surmised. The sooner these cases can be resolved with a solution satisfactory to all the better for everyone concerned.
The recently reported case of John and Anne Scarle, the elderly couple who died in their home, is an example of how conflict can arise when even the best made plans are in place. They each made a will leaving their estate to the other, and on the second death for it to be left to their own children (it was a second marriage). The daughter of the second person to die would therefore inherit the total amount of their combined estates. Sadly, the husband and wife both died from hypothermia in the course of a week, but it has not yet been possible to ascertain who died first. This has led to litigation between the two stepsisters as to who inherits the combined estate. There is a legal presumption that the older person died first, but this can be rebutted by evidence. Perhaps a case as binary as this, where at court one stepsister stands to gain all and the other to lose all, is ripe for a mediation with its flexibility of outcomes and the possibility for the combined estates to be shared between them if they were to so agree? Of note however is that the Revenue would still apply its own deeming rules relating to Inheritance Tax irrespective of any such consensual agreement…a good reason to always take tax advice before entering in to any settlement agreement.
Rebecca Attree is a Mediator and Solicitor with Hexagon Mediation