The PDF in which this article appears can be found in Bifocal Vol. 46 Issue 5.
June 24, 2025
Being Aware: Elder Abuse
By The Honorable Selena E. Molina/Senior Magistrate Judge, Delaware Court of Chancery
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, providing great power to the court-appointed guardian. With that great power, as they say, comes great responsibility. The court must remain aware and vigilant; 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 fiduciary for that individual. 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 fiduciary 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 fiduciary duties by tracking the guardian’s deadlines, conducting an annual review, and responding to any complaints or inquires related to the guardian’s service or person with a disability’s well-being. When issues arise, the Court relies upon its expertise in fiduciary duty law—something most often reflected 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 “misconduct.” 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 level 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 afforded 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 insufficient. 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 disability. I can also compel the guardian to hand over property of the person with a disability to the successor guardian. But I have no jurisdiction to investigate or further penalize the guardian for seeming neglect, mistreatment, or abuse. The “immense power” the Court may otherwise hold stops short of those inquiries. And, dissatisfying as it may feel, it is for good reason—those matters are better referred to the authorities for a criminal investigation. All the Court of Chancery can do is realign the guardianship and allow any other investigation or proceeding to play out in a more appropriate forum.
Rather than playing investigator and prosector, I see my role as monitoring, being aware, and maintaining a protective structure that permits the person with a disability to live their fullest life. Sometimes things go awry before I can step in. And there are several of those heartbreaking cases that have stuck with me throughout the years. I will continue to toss and turn some nights thinking about those bad-acting guardians and wondering about any follow-up on criminal investigations. But I take solace in dedicated law enforcement officers and prosecutors, and I refocus myself on how I can—and should—help from the civil judicial perspective. Being aware; that is how I serve.