Family disputes that centre around a loved one who lacks mental capacity can be extremely distressing for all involved.
People may have their own view of what has gone wrong and what needs to be done to put it right. When the views are not shared by all, disputes can arise - even within families who have previously seen eye to eye.
Going to the Court of Protection to resolve the matter, takes time and expense, is emotionally draining and may leave people feeling they have not been listened to. Even when the Court has made an order, it needs to be implemented and family members are left to pick up the pieces of what has become a fragmented family.
Mediation is an alternative approach to resolving these difficulties.
The parties are assisted by an independent mediator (who is not there to adjudicate or make judgments) to consider what stage the dispute has reached, what alternatives exist to resolve the dispute, and ultimately help the parties to reach a solution they find acceptable.
Mediation allows the process to remain within the parties' hands, it often helps strained relationships from deteriorating further, it is confidential and without prejudice, and the legal advisers work in a constructive rather than a destructive manner.
• The person who lacks mental capacity may have view of about the dispute and may wish to be involved
• Disputes about how an attorney or Court appointed deputy makes decisions
• Residency, care and contact disputes, which do not involve allegations of abuse
• Objections to the registration of Enduring or Lasting Powers of Attorney
Any decision that is made on behalf of a person who lacks mental capacity must be made in their best interest, rather than in the disputing parties’ best interest, following a process set out in the Mental Capacity Act 2005.
Where a person lacks mental capacity, where court proceedings have been commenced, the mediation outcome will usually be put to the Court for its approval, as the Court will need to see the solution is in the person who lacks mental capacity’s best interest.
Caroline Bielanska is an accredited mediator, qualifying from the School of Psychotherapy & Psychology at Regent’s University, London. Caroline is a leading expert in the Mental Capacity Act 2005 and writes and trains extensively in this area of law.
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