The legal definition of capacity is the “ability, capability, or fitness to do something; a legal right, power, or competency to perform some act. An ability to comprehend both the nature and consequences of one’s acts. Capacity relates to soundness of mind and to an intelligent understanding and perception of one’s actions.”
As mediators, we are required to take capacity into account when mediating. Capacity as we define it is the ability to make a rational decision and then to be able to enter into an agreement and stick to it. Sometimes, when discussing proposed mediation sessions with adult children talking about their parent’s care we will discuss whether their parents can participate. People with advanced dementia or elderly parents with diminishing mental capacity are not able to coherently participate in decisions that ultimately everyone present will need to agree upon and carry out.
We had one person call us about an elderly couple who were so disruptive in the facility where they were living that they were about to be evicted. The parents argued loudly and often. Their child called us, anxious for us to mediate with them and assured us that they were competent to participate. Upon interviewing them, it was apparent that neither was mentally capable of engaging in the process or reaching any agreement to arrest the behavior. It takes more than a brief discussion to assess whether a person has dementia. Often brief conversations can seem rational but longer conversations can reveal diminished rationality.
But it’s not just elderly or demented people who pose a problem. It’s not unusual for us to get a call from a sibling about mediation and during the course of the conversation have them mention that a sister or brother is ‘crazy’. Often times it may not be that particular sibling who is crazy; it may just be that he/she is hard to get along with or is the obstinate one in the conflict. But every once in a while, there is a family member who is mentally impaired and truly cannot engage in a serious conversation or the decision-making. Generally we have at least one difficult sibling in a mediation session but they are all equal participants in the discussion. We had one case where the siblings misrepresented/misperceived the ability of one sister. Although she was able to present herself reasonably well in an individual conversation, she was not able to follow a group conversation, much less make a commitment; even when a resolution was reached she would backtrack as if the issue was never resolved. Ultimately a general solution was found to resolve the circling dynamic that was hindering decision-making but individual issues were not able to be reasonably decided.
We rely on the other participants who know the person well to make that initial decision and ultimately our own judgment after speaking with him/her. If the participant is unable to stay on topic, translates the discussion into irrational conclusions or shows chronic confusion, we generally question whether that person can fairly participate in mediation.
As well intentioned as people might be, it is up to family and professionals to take capacity into account for planning. Have the parents accounted for the adult child’s incapacity when making their advanced planning? Has he/she been dependent on the parents up until the time of their death? Have they provided for their continuing care or housing or are they leaving these decisions as a legacy for their other children? Is this adult child able to be part of the conversations after a parent’s death? Is he/she capable of handling finances? Are the other adult children left with the task of including a sibling who doesn’t have the decision-making ability? These are questions lawyers and financial advisors should be asking as they help their clients plan for the future, the best time for these issues to be addressed.