Updated: Oct 29, 2019
Author: Sarah J. Gross, M.Ed., J.D., LL.M.
Orange County Superior Court has recently implemented an Eldercaring Coordination Pilot Program in the Probate Division in response to the increase in conservatorship case filings involving high-conflict family dynamics, multiple motions, and large fees.
In addition to practicing as an attorney and a mediator in Orange County, I spearheaded the development of this Program and serve as the Program Director. This is a significant initiative for the Probate Court, and it is important for the community to understand the purpose of the program and to clarify any misconceptions.
Eldercaring Coordination is an alternative dispute resolution process to help manage high-conflict family dynamics so that the elder, family and stakeholders can address their non-legal issues independently from the court. Research indicates that family conflict is at the root of many of contested cases involving elders, specifically conservatorships. This program was initially developed by a Task Force of the Association for Conflict Resolution (ACR) to address high-conflict indicators in such cases where the elder’s safety, wellbeing, and care are at risk.
The eldercaring coordination process involves eldercaring coordinators (ECs), impartial third persons who assist the parties in a high-conflict dispute to resolve their non-legal issues. An EC is appointed by the court for a term of up to two years to assist a family in making decisions related to the care of an elder.
ECs are not mediators. They are specially trained and qualified in high-conflict dynamics, dispute resolution, and probate case management to effectively assist families in elder care decision-making under high-conflict conditions.
There are currently eight pilot sites (including California). The implementation of the pilot program varies depending on the jurisdiction, as each jurisdiction has its own laws, regulations, and court systems. In Florida, for example, many cases are referred when litigation has been ongoing and the parties are entrenched in conflict within the adult guardianship/conservatorship. Since the Eldercaring Coordination program was first implemented in Florida about four years ago, approximately 60 high-conflict cases in Florida have been referred, with the following positive results:
· Significantly fewer motions to the court; when motions filed, more focused on legal, rather
than nonlegal, issues;
· Reduction of family conflict, minimizing risks and abuse, neglect and exploitation
· Fewer cases initiated to determine guardianship/conservatorship and in which capacity needed final determination through the court.
The other pilot sites (Idaho, Ohio, Maryland, Minnesota, and Toronto) are in the early stages of implementation, or are on hold in regard to this process.
The implementation of the program in Orange County is different than the implementation in the other pilot sites due to the specific needs of OC Superior Court. The Eldercaring Coordination program in Orange County is reserved for the especially high-conflict contested probate conservatorships. The goal is to identify these cases early on in the litigation process (i.e., when cross-petitions for conservator have been filed) before any conservator has been appointed to help the disputing parties determine:
1. What issues are involved in the dispute
2. What are the needs of the elder
3. Whether, and to what extent, a conservatorship is necessary
4. Alternatives to conservatorship to eliminate system abuses and exploitation, and ensure the elder’s needs are honored.
The goal of the program is to intervene early when “red flags” of high conflict are apparent (“red flags” here may include: controlling behavior toward the elder; multiple non-substantive motions to the court; sibling disputes, cross-petitions for conservatorship; safety concerns and/or involvement of Adult Protective Services) and focus on the care and wellbeing of the elder. From the court’s perspective, this means eliminating baseless petitions for conservatorship and re-routing these cases to an alternative process that helps to address the underlying issues of a case. This also means a substantial reduction in costs to the court and families. The probate court process can be lengthy and costly. Eldercaring coordination is meant to preserve costs. Evidence and research in the other pilot sites supports a substantial reduction in overall court and associated costs.
Where a case has already been in litigation for some time, and a conservator or fiduciary has been appointed, the eldercaring coordination process can be ordered to address high-conflict issues and determine if the conservatorship and/or fiduciary is still needed.
Eldercaring Coordination is an elder-focused process, and ECs are trained in screening for, and identifying, abuse and exploitation of the elder and follow appropriate reporting procedures and courses of action when safety parameters are needed. Research on ECs in current pilot sites already indicates that risks are addressed and abuse is reported when appropriate; that safety issues are addressed; and that ECs make appropriate referrals. The duration of eldercaring coordination, combined with the ECs’ training, makes it ripe for identifying and reporting allegations of abuse. An EC who works with a family for a two-year term and builds relationships is well-positioned to identify risks to prevent abuse, neglect, and exploitation, address existing safety concerns, and monitor safety of the elder.
The conservatorship case of Judge Betty Lou Lamoreaux is a prime example of why Eldercaring Coordination is needed. The probate proceedings regarding Judge Lamoreaux initiated in 2015, long before Eldercaring Coordination had reached Orange County. As reported by the Orange County Register in October 2016, Judge Lamoreaux’s family struggled and fought in trying to care for her and determine who should be in charge of her estate, leading to a long, contested probate court proceeding.
The eldercaring coordination process is meant to handle the high-conflict family disputes that lead family members to initiate these types of contested and problematic probate court proceedings.
The development of this program demonstrates progress in reducing conflict, increasing court efficiency, and addressing safety concerns for elders. Eldercaring coordination is another resource and another step forward in serving the needs of the elder population, assisting families through the transitions of eldercare, and allowing the court process, mediation, and attorney representation to function efficiently.
To learn more, contact Sarah at firstname.lastname@example.org.