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Elder Mediation and Legal Decision-Making Capacity (in association with EMAN)

Webinar recording | Online | Available for purchase

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In 2012, a decision of the Victorian Supreme Court established a new ground of professional negligence for lawyers – capacity negligence. Essentially, a lawyer who fails to properly assess whether their client has legal decision-making capacity can be liable in negligence if their client subsequently makes a decision that they didn’t have the capacity to make. This decision has clear implications for lawyers, mediators and elder clients in mediation.

Australia is a signatory to the Convention on the Rights of People with Disabilities and it is within this framework that the author examines the current state of legal decision making assessment in Australia. Mediation holds great promise in elder care, however it’s vital that all participants enter into the mediation space with a full understanding of its potential and of the capacity of the elder person to make their own decisions and the options for providing support to improve their decision-making abilities.

Associate Professor Dale Bagshaw, Chairperson of the Elder Mediation Australasian Network (EMAN) introduced this session and briefly outline the definition and scope of elder mediation and the importance of specialised elder mediation education, training and certification. Associate Professor Dr Lise Barry then draws on her research to identify good assessment practices and highlight some of the potential impacts on elders and their families when questions about capacity are ignored. Lise adopts a right-based approach that encourages interdisciplinary cooperation and clear communication with all parties to maximize the decision-making rights of older persons when it comes to decisions about their lives.

This webinar is a joint initiative of RI and EMAN and is the second in a series that EMAN is organising on elder mediation.

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About the speaker

Associate Professor Dr Lise Barry
Deputy Law Dean, Learning and Teaching
Macquarie Law School

Dr Lise Barry joined Macquarie Law School in 2005 from a professional background working in mediation and Youth Justice Conferencing. She currently teaches undergraduate and postgraduate courses in Legal Ethics and Alternative Dispute Resolution. Lise also provides professional advice and training to lawyers, mediators and other professionals working with older Australians.

Dr Barry’s research focusses on the intersection between law and ageing, with a particular focus on the rights of older Australians and the legal decision-making capacity of older people, including those with a diagnosis of dementia. Her PhD examined how lawyers assess the legal decision-making capacity of their clients and included empirical research centred on complaints made to the NSW Office of the Legal Services Commission. Lise’s current research is centered on the topics of substitute decision-making, guardianship, powers of attorney, elder abuse and the legal decision-making rights of people with dementia.

Lise has maintained her professional mediation practice and currently works with the NSW Department of Justice mediating disputes ranging from neighbourhood and family law disputes through to commercial and workplace disputes. She is also a member of the NSW Guardian Ad Litem panel, representing people who lack the capacity to instruct a solicitor or to represent themselves in NSW Courts and Tribunals.

Dr Barry is a foundational co-convenor of the Australian Research Network on Law and Ageing (ARNLA), a member of EMAN - 'Elder Mediation Australasian Network' and a member of the Australian Gerontological Association.

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Tags: Mediation