Dementia, Decision-Making and Family Conflict. The Role of Mediation in a Legal Setting - A New Approach

The Guardianship Board of South Australia is tasked with making decisions about people with impaired decision-making capacity, including those suffering from mental illness or dementia.  In addition to formal hearings, the Guardianship Board of SA conducts mediations or “Preliminary Conferences”, where the Board endeavours to assists parties to reach agreement about decisions and outcomes for the person who, as a result of the illness, no longer has decision-making capacity (a “protected person”).

A significant proportion of the applications lodged with the Guardianship Board involve conflict between family members of the protected person. Such matters may come to the attention of the Board because existing informal arrangements by family members have not been adequate, or have been ineffective or compromised due to the existence of conflict. A formal hearing process, while in certain circumstances is appropriate and necessary, can also expose and exacerbate conflict to the detriment of the protected person.

Conflict can be distressing and can contribute to other mental health issues, impacting in particular on older persons with dementia. The Board identifies certain matters involving family conflict as being potentially suitable for Preliminary Conference. An aim of the Preliminary Conference is to assist the people in the person’s life to reach agreement on important matters and outcomes about the protected person, for example, the protected person’s accommodation, access and visitation, and health care; - as well as the management of the person’s financial affairs.

This mediation model offered by the Guardianship Board of SA is informal and flexible. It is also highly effective in resolving matters. Indeed, since the model was introduced, 90% of the matters referred for Preliminary Conference have resulted in agreements being reached; and the matters resolved without further recourse to legal avenues. Increasingly, Preliminary Conferences are being conducted by the Guardianship Board in South Australia with excellent results. The paper explores the history of practice in this area, and points to its successes together with the lessons to be learned.

This paper was delivered at the International Mental Health Conference in 2013 by  Jane Anderson, Deputy President of the Guardianship Board of South Australia. She is a lawyer who has practised in South Australia and New South Wales. Previously, Ms Anderson was a senior lawyer at the Commonwealth Director of Public Prosecutions with experience in mental health and the criminal law, including the Mental Health Diversion Court.

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