Protective Orders, Questioned Capacity, and the Complex Realities

The PDF in which this article appears can be found in Bifocal Vol. 46 Issue 5.

As a Hearing Officer in Louisiana, I oversee protective order proceedings on a daily basis. These are some of the most urgent and emotionally 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, confusion, or conflicting intentions, we as judicial officers are asked to do more than interpret the law—we must navigate a delicate balance between protecting vulnerable 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, reports of elder abuse and exploitation have grown significantly in recent years. Yet, as I’ve seen firsthand, these cases are vastly underreported and often difficult 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 influence or suffer 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, fighting 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 representation, 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 had a valid Power of Attorney, filed 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/POA was present and explained her mother “was not feeling well”. During the hearing, testimony was elicited from the responding officer who reported that he saw no evidence of damage at the home. Further, he explained that the amount of money and location of “stolen” funds (as alleged by the daughter/POA), was in a wallet that the mother/alleged victim had moved herself.  The outcome was a dismissal.  However, a bench warrant could have been issued for the mother, as she failed to appear without notice or cause, despite an enforceable subpoena. This case underlines the “issues” with these sorts of family infighting cases, where all parties often disagree on what is in the alleged victims’ best interest. 

Another example that typifies an elder abuse case which could show up in a Protective Order docket is an 82-year-old woman, “Ms. L,” who appeared before me alleging financial exploitation and threats by her adult son. Her petition described being forced to co-sign loans, surrender her debit card, and tolerate verbal abuse. At the hearing, she struggled to recall key dates and looked to her niece (sitting in the gallery) for answers. Her son insisted she was “confused” and that this was all a misunderstanding. He provided recent photos of them together smiling at church. The facts weren’t clean, the testimony was inconsistent—but my instinct told me something wasn’t right. In this situation, I could have recommended granting a Protective Order, but my “gut” told me to refer the matter to Adult Protective Services. Weeks later, APS confirmed years of financial abuse. Another remedy could have been for the court to require a full cognitive assessment at that first hearing; however, by doing so, the victim would have been unprotected. Had the court dismissed the case due to her confusion, the abuse would have continued.

These cases underline difficulties with these types of petitions and hearings wherein there could be a petitioner who could clearly articulate abuse one day but seem confused the next, or sign a petition seeking protection, only to ask for it to be dropped days later, and/or accompanied by family members who speaks for them—sometimes with questionable motives.  It is difficult for the court to determine credibility and ultimately make the determination that there is “immediate danger of bodily harm…” as contemplated by Louisiana’s Domestic Violence law.