Protective Orders, Questioned capacity, and the complex Realities

• Pages: 92-94
• Date: 01 May 2025
• Published date: 01 May 2025
• Author: Maggie Trahan Simar
• Subject Matter: Derecho Civil

Bifocal 46 Issue 5

92

As a Hearing Ocer in Louisiana, I oversee

protective order proceedings on a daily basis.

These are some of the most urgent and emo-

tionally charged matters to come before the court.

While many cases involve intimate partner violence or

stalking, an increasing number involve older adults—

many of whom are experiencing abuse by family

members or caregivers.

These cases often raise an additional, deeply complex

issue: the capacity of the petitioner. When an older

adult presents signs of cognitive impairment, confu-

sion, or conicting intentions, we as judicial ocers

are asked to do more than interpret the law—we must

navigate a delicate balance between protecting vul-

nerable individuals and preserving their autonomy.

Although this is a prevalent and serious issue in the

courts, this article excludes this issue when dealing

with protective orders, focusing only on how these

cases arise in my rural court in South Louisiana.

According to the Louisiana Department of Health, re-

ports of elder abuse and exploitation have grown sig-

nicantly in recent years. Yet, as I’ve seen rsthand,

these cases are vastly underreported and often dicult

to litigate, particularly in the Protective Order arena,

as the abuse may be at the hand of the caregiver, often

a family member, but almost always someone who the

victim may rely on for care, transportation, or shelter.

They may feel shame or fear retaliation. Others may

be subject to undue inuence or suer from conditions

such as Alzheimer’s or vascular dementia. Despite

these barriers, some still come forward, asking the

court for protection—though not always in the most

coherent or consistent way.

What We See From the Bench

In Louisiana, as in most jurisdictions, there is no

single standard for “capacity” in a protective order

proceeding. Although this article is subject limited

to “what elder abuse looks like in court”, many cases

involve family members, often with valid powers of

attorneys, ghting amongst each other for the best

interest of the relative. Often, interdiction, rather than

a Protective Order, is the preferred (and best) cause of

action. However, unlike a formal interdiction hearing,

which requires medical evaluations and legal represen-

tation, the protective order process is designed to be

accessible and swift. Yet, therein lies the challenge.

A recent challenging case was a 75 year old mother

of two adult children and grandmother to one adult

grandson. The daughter, who was appointed as her

mother’s agent in a valid Power of Attorney document,

led for a Protective Order on her mother’s behalf,

against the son and grandson, alleging “banging on

the door, breaking the door in and stealing from” the

mother, “causing her fear and worry”. During the

hearing however, the mother/alleged victim was not

present, despite being subpoenaed by the son and

grandson. The daughter was present and explained