Being Aware: Elder Abuse

• Pages: 80-81
• Date: 01 May 2025
• Published date: 01 May 2025
• Author: Selena E. Molina
• Subject Matter: Derecho Civil

Bifocal 46 Issue 5

80

Judges, even civil judges, hold immense power.

Upon hearing cases and controversies, civil judges

issue orders, declaring parties’ respective rights,

requiring parties to act or cease from acting, and

awarding monetary relief. One of the most restrictive

orders a civil judge can issue is an adult guardianship

or conservatorship order. There, the judge strips an

adult of their right to make their own decisions and

gives decision-making power to another person or

entity as guardian or conservator. In issuing that order,

the court is exercising great power and, in turn, pro-

viding great power to the court-appointed guardian.

With that great power, as they say, comes great re-

sponsibility. The court must remain aware and vigi-

lant; monitoring and acting in response to the signals

of elder abuse.

I speak, again, from my perspective as the Senior

Magistrate Judge for the Delaware Court of Chancery.

When the Court of Chancery declares that someone is

a person with a disability under Delaware law, it—the

Court—becomes the ultimate duciary for that indi-

vidual. In that role, the Court determines who the most

appropriate guardian is, who will serve the person

with a disability and ensure their needs are met day in

and out. Anyone taking on that service is required to

submit to a background check, advised of their du-

ciary duties, given explicit instructions on reporting

requirements, and, if money is involved, required to

execute a bond to protect the person with a disability’s

assets.

The Court then exercises its overarching duciary du-

ties by tracking the guardian’s deadlines, conducting

an annual review, and responding to any complaints

or inquires related to the guardian’s service or per-

son with a disability’s well-being. When issues arise,

the Court relies upon its expertise in duciary duty

law—something most often reected in our corporate

cases—to determine if the guardian has breached her

duties and sanctions should be imposed. Sanctions are

then equitably applied to balance the need to remedy

any harm and protect the person with a disability, with

the truism that the burden of serving as guardian or

conservator is often a thankless job which has many

hurdles and growing pains.

Now in my seventh year presiding over guardianship

cases, I have seen a vast range of guardian “miscon-

duct.” On one end are the guardians who mean well,

are trying their best, but are simply not good record

keepers and struggle to collect and present the lev-

el of detail required by the Court. On the opposite

end are the designing and deceiving guardians, who

appeared well meaning upon appointment but use the

great power aorded to them to their own gain and

to the detriment of the person with a disability. Those

guardians are the most disappointing and concerning;

they must be promptly removed from their role and

replaced with an appropriate substitute.

But that removal can, at times, feel insucient. I

can—and do—accompany removals with monetary

judgments if the guardian has misappropriated, or

failed to account for, assets of the person with a dis-

ability. I can also compel the guardian to hand over