Conflict Resolution and Capacity

Updated: Nov 24

An elder's capacity to contribute to the process is often an issue of great concern when trying to resolve any dispute affecting or involving the elder. While "capacity" has a very specific legal meaning when it comes to entering into an enforceable agreement or testifying in court, capacity to participate in a conversation holds to a much more practical standard. Whether an elder has the capacity to participate in a conflict resolution process turns on whether the process is a conversation that brings people together to discuss their interests and concerns, or whether it is a legally enforceable proceeding that requires that the elder meet a defined set of standards regarding their ability to understand and participate in the proceedings. Mediation can be more like a conversation for some situations, where the solution lies in just bringing people together to begin to sort out some solutions to problems affecting the elder. Where the parties to the conflict, even to a mediation, are going to want to memorialize their final agreement in a writing that is enforceable in a court of law, the elder's capacity to understand the significance of the agreement, if she or he is to sign too, must be beyond question.

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