Apr 23, 2026
As a mediator, I have seen the same dynamic play out in many power of attorney disputes. Sibling A swears that the parent suffering from dementia doesn’t trust Sibling B, and wants Sibling A to act as POA for property and personal care. Sibling B tells me the opposite: the parent is highly mistrustful of Sibling A and insists that Sibling B is the only one that can be trusted to make substitute decisions about finances and health care.
Most of the time, I believe both of them.
I try very hard in our caucus meetings to ask questions aimed at encouraging each of the parties to explore whether both things might be true. I am surprised at how closed litigants are to the possibility that Alzheimer’s disease is the true villain in the dispute.
According to the Alzheimer’s Association, “a person with Alzheimer’s may become suspicious of those around them, even accusing others of theft, infidelity or other improper behaviour”. [1] Yet, in power of attorney disputes, siblings are often unwilling to consider that the parent’s suspicions about their sibling might be unfounded.
Another feature of dementia is confabulation. It is a natural coping mechanism which happens when a dementia patient attempts to fill in missing gaps in their memory with things that are untrue. Rather than confronting the painful truth that the patient has no memory of that meeting with the lawyer or that discussion with Child A, the diseased brain protects the patient by supplying false memories.
Alzheimer’s disease lies to the people suffering from it. Dementia patients commonly experience anosognosia – the inability to recognize their own memory and cognitive deficits.
Logic would dictate that when a parent suffers from Alzheimer’s, and says two different things to two different people, the most likely explanation is that the disease has rendered the parent an unreliable narrator. And yet, so many siblings caught up in POA disputes immediately dismiss the disease as a possible contributor to the dispute. They confidently conclude that the only possible explanation is that their “evil sibling” is a liar.
Perhaps it is less painful to believe their sibling is lying (particularly a sibling they never got along with) than it is to accept that the disease has already progressed to the point that the parent’s words cannot be relied upon anymore. When a child has spent a lifetime looking to a parent for support, advice, care and judgment, it is difficult to accept that certain aspects of the relationship are now gone.
Many years of litigating and mediating these disputes have convinced me that litigation is a terrible way of resolving them. Once litigants reach the mediation stage, they have spent tens of thousands of dollars on legal fees, making them even more entrenched in the righteousness of their position. Too often the stumbling block to settling these cases is the sunk costs of the legal fees already spent.
I can’t help but wonder: What if the siblings had pursued mediation from the outset instead of going to court first? What if they had consulted dementia experts first before going to legal experts? What if they had focused on dementia as the enemy instead of their sibling?
Angela Casey
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
[1] https://www.alz.org/
Sep 15, 2023
In the world of estate litigation, it’s common for matters to settle before they go to trial. Sometimes matters are resolved through settlement negotiations and, other times, matters resolve at formal mediations facilitated by a neutral mediator.
Settling litigation, whether early in the process or on the eve of trial, generally comes as a relief to clients; it means the end of what is frequently an emotionally exhausting and stressful process, not to mention a costly one.
But what happens after you’ve reached an agreement to settle with the other side? What steps do the parties have to take to wrap up the litigation so everyone can move on?
Once the parties agree, in principle, to a settlement, it is important to document the terms of that settlement in writing. This document is typically called the Minutes of Settlement.
Usually, one lawyer will prepare a draft of the Minutes of Settlement and the lawyers on the other side will review and provide their comments. Lawyers will go back and forth until everyone agrees on the Minutes of Settlement.
The Minutes of Settlement are where the lawyers turn their mind to the many minutiae of settlement that the parties may not have contemplated in their agreement, but that are critical to the settlement. For example, does a settlement payout include taxes? Who is going to pay each party’s legal fees? Now that the litigation is settled, who is going to file with the court the motion dismissing the court proceeding?
If a settlement is reached at mediation, the lawyers often try to get the Minutes of Settlement drafted and signed by all parties before the end of the day, although sometimes this just isn’t possible. Generally, the longer it takes to draft Minutes of Settlement and get them signed, the more likely it is for the settlement to fall apart.
In addition to drafting Minutes of Settlement, the lawyers will also prepare a Full and Final Release for the parties to sign. The Release is intended to ensure that no one can ever re-litigate the issues resolved in the settlement. The Release may also have a confidentiality clause or a non-disparagement clause.
Another consideration is whether the settlement involves a minor or an incapable person (called a “person under disability”). If so, before the settlement is finalized, counsel for the party under disability must bring a motion or application and file evidence to satisfy the court that the proposed settlement is reasonable and in the best interests of the party under disability.
Once the Minutes of Settlement and Releases are finalized, you’re not done quite yet. The lawyers for each side must make sure that their clients comply with any timelines set out in the Minutes of Settlement. For example, Minutes of Settlement may include deadlines for paying settlement funds, for dismissing a court application, for applying for probate, for moving out of a property owned by an estate, or for listing a property for sale.
If any party fails to comply with the terms of the Minutes of Settlement, the other side may bring a motion before the court enforcing the terms of the settlement.
While reaching a settlement means the end of litigation and is something to celebrate, for the most part, it takes a little more work to get things over the finish line.
Cara Zacks
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
