Can an Elder With Dementia Participate in Mediation?
Can an elder with dementia participate in mediation? The short answer is, it depends on the progress of the dementia.
Dementia is one of several kinds, the most common being Alzheimer’s Disease. It causes progressive damage to brain cells, initially affecting short term memory, and gradually affecting all “executive” functions of the brain, including judgment, analysis, thinking, and others. The affected person eventually loses the ability to recognize familiar objects, and even loved ones.
In the early stages, this kind of dementia affects short term memory, but other parts of one’s thinking can be all right. One can carry on a conversation, express one’s self, and make decisions. An elder with early Alzheimer’s Disease (AD) may be able to live alone, drive, and manage affairs. However, even at the early stages, one must be aware that this condition is progressive. It affects everyone differently, and is therefore, unpredictable.
In the meantime, what if there is a family conflict, mediation seems to be the way to deal with it, and the elder has dementia? Do we invite the elder to come to mediation?
Our experience at AgingParents.com with elders who have dementia is that they are invited to come to mediation if they are willing and want to be there. They may not stay for the entire discussion. We may want to provide for a caregiver to accompany them elsewhere after a part of the talking is done.
We do want an elder to be able to express his or her wishes. We do want him or her to feel respected and a part of the process. However, we don’t want to expect too much from someone with limited capacity to remember and participate.
As mediators, we offer the opportunity for the elder to participate when we have a pre-mediation conference with the family or others who will be present at mediation. Sometimes this is by phone. At that time, we try to get an idea of the aging parent’s level of function. If the elder can carry on a conversation, it’s a start.
Sometimes, things will be talked about at mediation which could upset the elder, or cause unnecessary stress. We make every effort to be sensitive to this, and to arrange with the family members to spare the elder from extra stress.
In our experience, some elders stay for the entire session, and some leave early. In some cases, the elder is too disabled to be there at all. So, the question of whether to ask or permit an elder with AD to come to mediation must be decided on a case-by-case basis. Even if their participation is only symbolic, and they are likely to forget what happened by the next hour or day, it can be a respectful gesture to ask the elder to be at mediation, at least for awhile. The family’s wishes about this are also considered.
The final point is that settling an issue at mediation requires the ability to make a reasoned decision and to keep commitments made at mediation. Where there is conflict, the participants who have decision-making ability should have the final word about any outcome of mediation.
Carolyn L. Rosenblatt, R. N., B.S.N., Attorney
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