The Elder Justice Coordinating Council, in partnership with members, can address and arrest adult guardianship abuse and exploitation as state-sponsored white-collar crime
Under separate cover, this essay was respectfully submitted to the Administration for Community Living, representing the Elder Justice Coordinating Council, in response to the Federal Register Notice (Vol. 89, №58/Monday, March 25, 2024, Notices 20661) “Request for Information: Elder Justice Coordinating Council Priorities.” April 24, 2024.
Guardianship, preamble
In 2006, when I first started advocating for elder justice, I supported guardianship as one means to safeguard certain older citizens.
Guardianship helped save my grandmother — Brooke Astor, New York City philanthropist — after she endured years of abuse and exploitation inflicted by my father, Anthony Marshall.
Guardianship can help incapacitated persons stay at home — in place and with grace — when training and available community supports and services augment the care and devotion of non-abusing family members and friends.
Guardianship can help indigent individuals and “elder orphans” with no family or friends. These citizens can benefit from public or community guardianship programs when they are adequately funded and monitored to meet state mandates.
Guardianship can save incapacitated older adults from abuse and exploitation by a family member or “friend.” Both are the bad actors in most cases of abuse.
Such was my grandmother’s case when my father deprived her of friends and personal needs while stealing her money outright. He also had her sign legal documents transferring tens of millions of dollars to his control claiming she had testamentary capacity — years after he wrote to her geriatrician stating, “She is delusional.”
In 2012, I was co-recipient of the first Isabella Horton Grant Guardianship Award (“The Isabella Award”), presented by the National College of Probate Judges by immediate past president Mary Joy Quinn. Annette de la Renta, my grandmother’s devoted guardian and closest friend, shared in the award.
I was proud of that award. I had seen first-hand how guardianship helped my grandmother. But as I gained a greater understanding, my position on guardianship changed. In 2015, President Ginny Casazza invited me to provide the keynote address before the National Guardianship Association (NGA) national conference. My message to members was to reconsider methods of assessment of older adults with diminished capacity and to employ guardianship “only as a last resort” with reference to NGA’s recently established position (2015).
My work has been transformed, fueled by the insight of experts and driven by the determination of concerned persons who have been failed by society as they try in vain to protect loved ones, themselves, and society from the perils of guardianship.
I now focus on our country’s most dangerous and unconscionable form of elder abuse and exploitation: state-sponsored guardianship abuse and exploitation as white-collar crime. This epidemic is a threat to our justice system, society, and our future selves.
There are three reasons I am invited to advocate for elder justice: I am the grandson of a famous philanthropist who was abused by her only child; I am a concerned person who acted to save my grandmother from abuse by my father; and, due to the efforts of many, I was successful. Most people don’t have a famous grandmother; most people do not act against abuse, and if they do they seldom share such success. This is particularly true in guardianship cases.
As concerned persons, when we decide to act, we need to know society has our back. Otherwise, we feel helpless and hopeless, as do those we strive to help.
Elder Justice Coordinating Council
This paper (“information”) responds to Federal Register Notice (Vol. 89, №58; Monday, March 25, 2024, Notices 20661) titled “Request for Information: Elder Justice Coordinating Council Priorities,” whose summary states,
“The Administration for Community Living (ACL) seeks information on recommended area(s) and or issue(s) for which elder justice stakeholders believe the Elder Justice Coordinating Council (Council) can be the most beneficial to promoting elder justice and have the greatest positive impact for survivors of elder abuse, neglect, and exploitation and their communities.”
Submission questions
ACL provided the following questions (italics, added), which serve as an outline for my response that follows.
1. State the area(s) and or issue(s) in elder justice that should be considered a priority for the Federal Government to address through the Elder Justice Coordinating Council.
2. Provide detail on the reason the area(s) and or issue(s) should be considered a priority for the Council.
3. State the activities, tools, resources, or components that would effectively help states and communities create and strengthen their systems of services and supports in order to maximize the independence, well-being, and health of people at risk for elder abuse, neglect, and exploitation, their family members, and their support networks.
4. Provide detail on any benefits, including how equity will be advanced, and/or barriers that might result from the Council incorporating the recommendation.
This paper is preceded by my earlier response to a Council solicitation: How U.S. federal agencies can help each of us gain agency, to act against (elder) injustice (December 31, 2019), which did not address guardianship directly but speaks of the concerned persons who are directly and desperately trying to help older citizens who are abused and exploited in all arenas, including guardianship.
My paper is not only “information.” My work is in formation, it’s evolving. This paper will be included as an essay in my series Beyond Guardianship, whose postings, in progress, should be considered as an addendum to this paper.
Area/issue (question 1): Guardianship
Erica F. Wood concluded (2012, page 79), “guardianship can be a godsend or a gulag, a help or a hindrance.”
The U.S. Department of Justice Elder Justice Initiative provides the following definition of guardianship:
“Guardianship is the appointment by a [state] court of a person or entity to make personal and/or property decisions for an individual whom the court finds cannot make decisions for themselves. These may be decisions about an individual’s property, personal affairs, or both.”
Abuse aside, guardianship — sometimes called conservatorship — deprives society and citizens of an inclusive, socio-ecological approach that embraces our social networks of support, when necessary facilitated by a research-informed means of supported independence including supported decision-making (Administration for Community Living). Plenary, permanent guardianship is frequently unnecessary and frequently imposed. Lisa Nerenberg notes (April 23, 2021),
“Guardianship is a blunt force instrument that is often applied when surgical approaches are better suited to cognitively impaired elders’ needs.”
Guardianship — framed in the context of a person-subject-to-guardianship and court-appointed-guardian dyad — is a flawed social construct displaying anti-social characteristics, similar to some of the archaic frameworks that still address elder abuse in the context of the elder-abuser dyad.
Lisa Nerenberg, in Elder Justice, Ageism, and Elder Abuse, tackles America’s elder care crisis head-on, wielding global insights and a groundbreaking model to champion prevention. Nerenberg conducts a comprehensive examination of the state of our nation (with global references) and recommendations for reform, informed by a new model. Nerenberg presents a hierarchy of prevention that includes three levels, from proactive to reactive (2021, 54):
- Primary, to reduce or eliminate risk factors;
- Secondary, to identify problems at an early stage, through screening toward risk reduction; and
- Tertiary, to mitigate harm and prevent re-victimization and escalation.
Secondary risk reduction and tertiary mitigation are all but impossible in guardianship, given the frequent lack of rights — added abuse, aside. As a social harm and anti-social construct, guardianship is a risk factor acting against our social compact. While modifiable, reducing the risks imposed by guardianship has met with failure for over two generations, prior to Representative Claude Pepper’s 1987 congressional hearing on guardianship subtitled “A National Disgrace.”
Nerenberg’s most proactive primary level — to reduce or eliminate risk factors — is by far the most forward-looking and highest aim for elder justice. It is essential in guardianship since secondary risk reduction and tertiary mitigation are almost impossible. To eliminate risk factors, states must abolish guardianship and adopt a more legal, ethical, and humanitarian approach to safeguarding society and our future selves — now.
Guardianship can foster abuse and exploitation that is enabled and abetted by entrenched power imbalances, limited resources, inadequate oversight, minimal accountability, lack of transparency, court cronyism, and even outright corruption. In this advantageous environment, guardianship may be employed strategically as a weapon and a shield, allowing bad actors to compromise citizens’ net worth, self-worth, and lives.
Once imposed, the near-irrevocable nature of permanent and plenary guardianship leaves persons subject to its authority and their advocates perpetually fighting a losing battle against a system intended to safeguard citizens, not bad actors.
Reform, then abolition of guardianship, will address Nerenberg’s first and second-level threats to individual rights and abuses of power at the primary, proactive level of reducing or eliminating risk factors — here, inherent in guardianship.
Even in the absence of abuse and exploitation, guardianship strips citizens of their constitutional and humanitarian rights and creates the potential for additional harm. For morally compromised individuals, the dehumanizing nature of guardianship provides a means and even a motive to exploit and abuse adults, often without consequences.
Guardianship abuse — most aimed toward financial exploitation — is so deeply entrenched in our state court systems and addressing it is a daunting task. Each state, in concert with coordinated federal determination, must make an effort equal to the tremendous trauma and the cost abuse and exploitation have imposed on our most vulnerable adult citizens, their families, taxpayers, and society.
Elder justice is a relatively new field of study. Like other social movements, its early efforts focused on responding to abuse, particularly the harm inflicted by perpetrators and the vulnerability of victims. This approach, which is mostly reactive rather than proactive, has informed backward-looking prosecution rather than the forward-looking prevention inherent in elder justice.
Real impact demands shifting our focus from damage control to upstream interventions that tackle the root causes and prevent abuse from taking root in the first place. In Upstream: The Quest to Solve Problems Before They Happen, Dan Heath declares:
“My goal in this book is to convince you that we should shift more of our energies upstream: personally, organizationally, nationally, and globally. We can — and we should — stop dealing with the symptoms of problems, again and again, and start fixing them.”
Heath continues, “To go upstream is a declaration of agency: I don’t have to be at the mercy of these forces — I can control them. I can shape my world.” The denial of agency in guardianship has scaled to society’s response. Going upstream will help both citizens subject to guardianship and society reclaim agency.
Pamela B. Teaster and Jeffrey E. Hall, explain why prevention has not taken the lead until now:
“Most of the early work defined EA [elder abuse] from the conceptual, research, and practice frameworks undergirding and embraced by aging services, criminal justice, and domestic violence prevention systems and networks (Nerenberg, 2008). Because the overall approach taken by the domestic violence sector is one focused on secondary and tertiary prevention of intimate partner violence (IPV) among women of reproductive age, EA has not been well integrated into prevention strategies (Otto & Quinn, 2007).”
An elder justice focus on prevention empowers us to live our best lives and strengthens our social fabric by challenging ageist norms, promoting positive behaviors, and safeguarding our humanitarian and constitutional rights through our life course.
Guardianship is a state system designed to protect vulnerable citizens from harm. Too often, the system protects individuals (bad apples) and the courts (corrupting barrels) that abuse and exploit older adults and erode the foundation of trust that underpins society. Betrayal of trust in guardianship is a crime that “has the capacity to undermine the trust in the entire sociopolitical system,” notes Sally S. Simpson (2013). Reforming and then abolishing guardianship is a leverage point toward systems change for elder justice and a better future for ourselves, individually and societally. The Elder Justice Coordinating Council can lead the way in protecting citizens’ rights and lives.
Representative Claude Pepper, during his Congressional hearing on guardianship, subtitled “A National Disgrace,” emphasized (September 25, 1987; 31)
“We are not trying to meddle in somebody else’s business; we are trying to carry out our business, which is the protection of our people against abuses that are not being prevented by others.”
Reason (question 2)
Guardianship abuse and exploitation is state-sponsored white-collar crime when viewed through the lens of trust —
Despite efforts by many experts and advocacy by concerned citizens countrywide, guardianship abuse and financial exploitation are more entrenched today than in the early 1980s when Congressman Pepper began research on the subject.
In part, this is due to the insidious nature of elder abuse and exploitation as state-sponsored white-collar crime in too many adult guardianships. This epidemic threatens our society, justice system, constitutional rights, and future selves.
White-collar crime is committed by individuals in positions of power and trust. White-collar crime is associated with corporations and their individual actors: Today, Bernie Madoff, Sam Bankman-Fried, Carlos Watson, Elizabeth Holmes, and Sunny Balwani come to mind. Guardianship abuse and exploitation must also be considered a white-collar crime, especially when viewed in the context of power and trust.
The Federal Bureau of Investigation defines white-collar crime as (U.S. DOJ 1989, 3; cited in Barnett):
“. . . those illegal acts which are characterized by deceit, concealment, or violation of trust and which are not dependent upon the application or threat of physical force or violence. Individuals and organizations commit these acts to obtain money, property, or services; to avoid the payment or loss of money or services; or to secure personal or business advantage.”
In White-Collar Criminality (1940), Edwin Sutherland is most known for introducing this concept to broaden a widespread but limited understanding of crime and to extend beyond society’s biased belief, “that crime, as popularly conceived and officially measured, has a high incidence in the lower class and a low incidence in the upper class.” (1) Sutherland’s seminal work has done much to deepen our understanding of an immense sector of crime that debilitates all of society. These crimes are not limited to a single victim — they are a social harm.
Brian K. Payne assesses eight different concepts and 12 definitions that criminologists employ, noting,“A definition of white-collar crime acceptable to all groups is yet to be developed.” (2017, 37–39). The perception and focus remain on corporate crimes. But there is rising interest and concern in areas that include health, education, housing, the environment, transnational technology-facilitated fraud, and systems of social control — the courts included.
Definitions of white-collar crime typically focus on three aspects: the type of offender (socio-economic status and/or occupying a position of trust), the organizational culture, and the type of offense. Toward data-informed crime prevention, the Federal Bureau of Investigation (FBI) favors a definition focused on the “type of offense” (Barnett n.d.), in part because the other distinctions are not covered in the National Incident-Based Reporting System (NIBRS), which recognizes that “Every criminal state statute must be mapped to a NIBRS offense definition to help ensure uniformity and consistency of data across the country.” (FBI 2018).
Twenty years ago, Ivasncevich and colleagues noted, “Annual economic losses from white-collar crime have been estimated to exceed losses from common crime by a ratio of anywhere between 17 and 32 to 1.” (2003, 117) A firmer figure can eventually be obtained with the help of the FBI NIBRS, which it transitioned to in 2021. “Every state is now NIBRS compliant and can accept NIBRS data.” (FBI, August 11, 2022) The challenge is to address NIBRS offense definitions (2018, released Fall 2019) informed by a greater understanding of white-collar crime in general and guardianship abuse and exploitation in particular.
From a criminological perspective, white-collar crime entails “violations of the law to which penalties are attached that involve the use of the violator’s position of significant power, influence or trust in the legitimate economic or political institutional order for the purpose of illegal gain, or to commit an illegal act for personal or organizational gain.” (Reiss and Biderman 1980, 4)
“Those in which ‘one party is at the mercy of the other’s discretion’ [Weinrib 1975, 7] are labeled ‘fiduciary’ or ‘trust’ relations and subject to much stricter legal rules and intrusive moral rhetoric,” observes Shapiro.
Guardianship and its reform seem to be on the sidelines until we “think about white-collar crime as abuse of trust” (Shapiro 1990). This approach informs social theory, criminology, policy, legislation, and response. This approach allows other concepts to coalesce and serve as a catalyst to help arrest abuse and advance systemic reform.
All too prevalent fraud (Office of Victims of Crime, U.S. DOJ) and “pure” elder financial exploitation (Shelly L. Jackson and Thomas L. Hafemeister 2012) aside, elder abuse is a betrayal of trust. As defined by the World Health Organization (WHO):
“Elder abuse…is a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person. This type of violence constitutes a violation of human rights.”
This vital relationship of power and trust is underscored below, and by two hearings and reports of the U.S. Senate Special Committee on Aging:
- “Abuse of Power: Exploitation of Older Americans by Guardians and Others They Trust.” (April 18th, 2018)
- “Ensuring Trust: Strengthening State Efforts to Overhaul the Guardianship Process and Protect Older Americans” (November 28th, 2018) and the companion Guardianship Report.
Above all other relationships between society and self — and far, far beyond any informal “expectation of trust” — guardianship embodies our most demanding legal, social, ethical, and moral obligation. Arguably, guardianship manifests society’s greatest responsibility held in trust, given the courts’ and guardians’ broad-scope fiduciary duties and the profound, asymmetric power imbalance (Luhmann 2017) imposed on persons subject to guardianship in the absence of beneficiary control.
Fiduciary or trust relationships, in which “one party is at the mercy of the other’s discretion” (Weinrib 1975), must be subject to our strictest legal rules, pro-social norms, and moral obligations.
“In contrast with the power of white-collar criminals is the weakness of their victims,” Sutherland observes (1940, 9). The court-determined fact that persons subject to guardianship are (allegedly) cognitively impaired compounds this perpetrator-victim power imbalance. This is made more predominant and persistent by courts when they deny a strengths-based approach to self-determination informed by a capabilities approach through supported independence, and when they turn a blind eye.
In addition to older citizens subject to guardianship, asymmetric power imbalance is evident in cases involving adults with psychosocial disabilities, note Matthew S. Smith and Michael Ashley Stein reporting in Bill of Health of the Petri-Flom Center, Harvard Law. The authors quote, “This power, which has undoubtedly been left open to abuse, requires urgent and systematic checking if the abuses of the past are not to be repeated,” in the introduction of Mental Health, Legal Capacity, and Human Rights. (September 29, 2021)
To underscore the trust-power imbalance, Ensuring Trust: Strengthening State Efforts to Overhaul the Guardianship Process and Protect Older Americans (U.S. Senate Special Committee on Aging, November 2018) begins its executive summary with:
“Guardians are entrusted with significant power over individuals who rely on their support. A guardian’s authority can range from deciding where an individual will live and when to seek medical care to choosing if family members are allowed to visit and how to spend retirement savings. Most guardians are selfless, dedicated individuals who play an important role in safeguarding vulnerable individuals. However, recent reports of guardianship abuse highlight cases where guardians have abandoned their duty of doing what is in the best interest of the individual in their care. Unscrupulous guardians acting with little oversight have used guardianship proceedings to obtain control of vulnerable individuals and have then used that control to liquidate assets and savings for their own personal benefit.”
As observed by Karen Cook in Trust in Society (2001, xvii-xviii), published by the Russell Sage Foundation:
“Bacharach and Gambetta analyze in detail the significance of signs of trustworthiness for the ‘primary problem of trust’ — deciding when and whom to trust about what… The problem to be resolved in this analysis is the potential for opportunism and mimicry of trustworthiness.”
Given ample impetus for opportunism through the betrayal, mimicking, and manipulation of trust, perpetrators employ insidious, skillful means to hack trust in ways that compromise both individuals subject to guardianship and society, whose foundation and future rests on trust.
Guardianship abuse and exploitation, as a white-collar crime, involves the manipulation of trust and fiduciary responsibility by actors associated with the court system. Here, manipulation is twofold: it means (1) “to control or play upon by artful, unfair, or insidious means especially to one’s own advantage” and (2) “to manage or utilize skillfully.” (Merriam Webster) Of the latter, this skill is taught to perpetrators by the state, through differential association.
Differential association —
An alarming number of guardianship abuse and exploitation cases appear to be state-sanctioned — whether by commission, omission, collusion, or all three.
- Commission extends beyond outright criminal acts by an individual to aiding and abetting other persons who are engaged in illegal acts, through collusion.
- With respect to financial abuse, omission—or the failure to do the right thing — may extend as far as found in California statutes to include a “person or entity knew or should have known that a conduct is likely to be harmful [italics, added] to the elder or dependent adult.” (Welfare and Institutions Code §15610.30(b)), for example. In guardianship, the sole focus and burden is on the knowledge (or lack of it) of those in the court system, not on the person under guardianship that the court had deemed to be incapacitated, hence legally lacking know-how. Just as persons under guardianship have been denied rights, they have been stripped of responsibility, which is now assumed fully by the state along with obligations, many affirmed under oath, taken by actors in the system. Legislative counsel’s digest notes that California Senate Bill №278 (introduced by Senator Dodd, February 1, 2023) “…would state that [the bill’s] provisions are declaratory of existing law.”
- Collusion refers to the nature of this white-collar crime as racketeering (18 U.S. Code §1961 — Definitions, Cornell). Collusion among individuals engaged with the court system may be fostered by differential association.
“[S]ome argue that these [white-collar] crimes differ from and are somehow less serious or dangerous than common crimes because the perpetrators usually lack mens rea — criminal intent,” explains John M. Ivancevich and colleagues (2003, 118) This false premise is a leading indicator of white-collar crime as it involves criminal intent that has been learned. Pertinent to guardianship, this criminality is not learned in corporations, but in our state court system.
For the purposes at hand, what is vital is Sutherland’s concept of differential association through which “white-collar criminality, just as other systematic criminality, is learned; that it is learned in direct or indirect association with those who already practice the behavior.” What is different from other crimes is that “The inventive geniuses for the lower class criminals are generally professional criminals, while the inventive geniuses for many kinds of white-collar crime are generally lawyers.” (Sutherland 1940, 11) Most white-collar crimes are manifested by a small circle of cadres — lawyers in corporate offices or in ex parte court hearings, for example. Explicit in guardianship abuse and exploitation cases, lawyers are in control and in combat at the onset, at times before an (allegedly) incapacitated respondent subject to guardianship proceedings enters the arena — many times without due process.
Differential association allows us to understand that criminal behaviors are learned by interacting with others in frequent and intimate groups in which criminals acquire specialized knowledge in how laws and trust can be gamed to their advantage to minimize risk and favor reward, and conclude that deciding to engage in criminal act is a rational choice (Shover and Hochstetler 2005).
Differential association drives criminals to act with impunity. “Impunity is the exercise of power without accountability, which becomes, in its starkest form, the commission of crimes without punishment,” The Eurasia Group in its 2022 Atlas of Impunity, which provides a quantitative assessment of its definition of impunity, measured by independent indicators across five sites in society. In the United States (naturally, not covered in the atlas), state-sanctioned guardianship abuse and exploitation may be assessed in four of the five independent indicators: unaccountable governance, human rights abuse, conflict and violence, economic exploitation, and environmental degradation.
Probate courts provide a favorable environment for learning deviant behavior through differential association and toward scaling such nefarious efforts. It remains to be seen whether equity courts provide a nurturing incubator space that advances other forms of white-collar criminality beyond guardianship abuse and exploitation, “infiltrating legitimate business” (Cressy 1969) in other arenas.
“[L]ike elder abuse, scholars disagree as to what offenses should be classified as white-collar, as well as which offenders should be identified as white-collar criminals,” observes Policastro, Gaine, and Payne (2015, 30), who then turn their focus on potential offenders when they consider, “[with] white-collar offenses committed against older individuals, a variety of offenders such as home health care workers, telemarketers, and home repair persons may victimize older adults.”
The authors’ neglect in mentioning offenders in probate courts are (1) looking inward, an indicator of the insidious nature of these offenses, and (2) looking outward, a societal disregard of this corruption and cronyism advanced by systemic ageist attitudes, society-wide. Both require urgent attention. Both are informed by Henry N. Pontell (2016, 51), who observes, “White-collar crime to a considerable degree suffers not only from trivialization but also to a great extent from a failure of recognition, from invisibility…”
Guardianship abuse and exploitation is not a cottage industry. It is a business, an enterprise that “takes place across a spectrum including legal and criminal businesses” (Smith 1970, 358). At times, guardianship abuse and exploitation is a joint enterprise (Cornell), mindful that the “…modus operandi literature demonstrates the existence of consistent pressures to pass blame for white collar crime downward in the class structure” (Braithwaite 1985, 7).
Braithwaite notes that after “international corporate bribery scandals of the 1970s, there was a decade when many of the brightest and best criminologists of that generation prioritized the study of white-collar crime. That surge of interest gradually waned.” (2022, 65)
Fortunately, a new dawn rises in a new publication and in renewed interest and intent in addressing and arresting white-collar crime. In its 2020 inaugural issue in 2020, the Journal of White Collar and Corporate Crime (Anne Alvesalo-Kuusi and Gregg Barak 2019, 4) declared that it:
“strives to advance the knowledge of the fields of trusted criminals, to enhance empirical and theoretical investigations into the crimes of the powerful, and to reduce the experienced harms and victimization of ordinary people by influencing and supporting new social interventions through legally oriented policy change and critique.”
Sustained efforts will also inform and transform legislation, practice, and prevention. The journal was launched by the Division of White-Collar and Corporate Crime, established within the American Society of Criminology in 2017. The division was created by the White Collar Crime Research Consortium (WCCRC, history), which was in turn developed under the sponsorship of the National White Collar Crime Center (NW3C).
NW3C was invited by the U.S. Department of Justice to collaborate on the DOJ-funded, newest Elder Abuse Guide for Law Enforcement (EAGLE) free online training in partnership with The National Center on Elder Abuse, which has helped expand partnerships nationwide. For example, NCEA presented at the 2023 National Sheriffs’ Association Conference, in part to gain a “glimpse at the newly refreshed EAGLE training with the National White Collar Crimes Center.” (February 4, 2023)
Sutherland (1940), in his seminal publication, concluded that “Differential association culminates in crime because the community is not organized solidly against that behavior.” These writings signal our clarion call to arms. Our goal will be no less than to “…dissolve social spaces in which predominantly people with deviant motives and patterns of action live.” (Wickert 2022)
Routine activity theory, in practice —
Routine activity theory helps place responsive regulation in context. Routine activity theory was first developed by Lawrence E. Cohen and Marcus Felson in their seminal work, “Social Change and Crime Rate Trends: A Routine Activity Approach” (1979). I was introduced to this theory by Marguerite DeLiema and Scott R. Beach in their webinar, “Social relationship and elder financial victimization” (April 25, 2018).
Routine activity theory describes a physical convergence in time and space — during our routine activities — of a likely (at times motivated) offender with the goal of committing crimes against a suitable target in the absence of a capable guardian.
When first developed, Cohen and Felson took a socio-ecological approach to understanding the 1960s rise in crime despite economic prosperity. As explained by Fernando Miró (2014, 1),
“To explain this contradiction, they focused on changes in structural patterns of people’s daily activity and how the new configuration provided greater criminal opportunities and, therefore, could influence the trends observed in rates of certain types of crime, in particular crimes against persons or property.”
DiLiema (2017, 707) observes, “Most theories of elder abuse focus on victim and/or perpetrator risk factors. Criminological theories add an additional perspective by focusing on the situational factors affecting risk of victimization.”
Here, a “capable guardian” refers to a trusted, capable, concerned person, not specifically a court-appointed guardian. To avoid confusion, what follows refers to a “concerned person” as a placeholder for Cohen and Felson’s “guardian.”
State guardianship systems exercise an entrenched, profound, asymmetric power imbalance (Niklas Luhmann 2017) that acts against imparting any equity and agency to persons subject to guardianship — and to any trusted concerned persons, who, given the circumstances, are denied being “capable,” despite their concern. Simply put, concerned persons (here, typically family or friends) who are desperately trying to rescue an older adult from a guardianship proceedings end up feeling helpless, hopeless, and betrayed by society. Even fewer concerned persons can protect a person once they are subject to guardianship, especially when the court-appointed guardian is a court-appointed lawyer or a commercial enterprise.
In guardianship proceedings, money power refers to the influence of, and impetus to gain, wealth and financial resources. The term money power takes on a particular significance when money funding exploitation comes from a person subject to guardianship. This self-funding exploitation arises when a guardian, in collusion with other actors within the court system, utilizes “legal” mechanisms to misappropriate funds from the assets of the person under guardianship, resulting in more personal financial gain.
This must be considered double jeopardy in a broad sense. Persons under plenary guardianship have already lost autonomy, including control over their finances. When they are then funding their exploitation by those who have been entrusted with their care, it is a second layer of harm and injustice.
Money power is both the motive and means in state-sanctioned abuse and exploitation of persons under guardianship. To meaningfully reduce the pervasive influence of money in guardianship and pave the way for its abolition, a robust and independent system of third-party oversight must be established now.
This third-party oversight can be achieved by Elder Justice Coordinating Council members working in concert with states, all serving as “capable guardians” in the sense defined by Cohen and Felson in their writings on routine activity theory.
Federal involvement —
Federal involvement in combating guardianship abuse and exploitation helps for many reasons. Two are:
- Federal benefits, entitlements, and taxable life savings are at risk
- Many guardianship proceedings are unconstitutional
Both are detailed below.
Entitlements and life savings at risk through criminal exploitation —
The aim of guardianship exploitation is to steal federal entitlements and taxable income from a person subject to guardianship.
Economic factors include:
- The availability of trillions of dollars of older citizens’ life savings and earned entitlements (“new property,” Reich 1966)
- A chronic lack of funding and resources (Solinski 1997) to protect and serve faithfully our most vulnerable adult citizens subject to the state’s care and fiduciary duty. State efforts are impacted by a perceived or conceived cost and concern for balancing state budgets, while the scales of justice are tipped against citizens who are deprived of life, liberty, and property.
“Baby Boomers [born 1946–1964] hold half of the nation’s $140 trillion in wealth.” (Talmon Joseph Smith and Karl Russell; May 14, 2023). Estimates range from $30 trillion to $53 trillion (Cerulli Associates) to $78 trillion (Federal Reserve), depending in part on transfer years. (Estimates do not include the Silent Generation, older Americans born before 1946.) Baby Boomers are set to pass down a staggering amount of wealth to their heirs, marking the largest intergenerational transfer in history. Some money — inheritance to heirs, bequests to charities, and taxes — will never make it to intended recipients due to estate trafficking by the courts through guardianship.
Who is at risk in guardianship? Any older citizen with wealth, or on welfare, or in between. Older Americans’ wealth, or lack of it, reveals a profound dis-equity: There are citizens who have been life savers; there are citizens who need lifesavers.
Some citizens have been life savers, collectively amassing trillions of dollars they hold on to, in part because they don’t know how much they will need for their later years. Here, the financial industry, regulators, and nonprofits play a key leadership role in protecting older adults’ net worth, self-worth, and lives. Empowered to act by legislative acts, this financial and fiduciary realm holds great promise in detecting and arresting financial exploitation and other forms of abuse instrumental to criminal acts — guardianship abuse and exploitation included.
Mark Blyth, professor of political economy at Brown University’s Watson Institute, indicates that (GQ2017):
“Eighty percent of all financial assets are owned by baby boomers. Next stat: 85 percent of that 80 percent is owned by the top 20 percent of boomers. Next stat: 50 percent of boomers have no financial assets whatsoever. So, what that means is the asset inequality within the boomers as a generation, is as great as the inequality across the entire asset distribution, regardless of age.”
“If assets attract thieves, one might expect elder financial exploitation to be limited to, or at least skewed toward, the wealthy. But that is emphatically not the case. Far from reducing the risk, poverty appears to increase the risk of elder financial exploitation,” Stephen Deane reports for the U.S. Securities and Exchange Commission, Office of the Investor Advocate (2018). Dean continues, citing a 2014 New York study by Peterson and colleagues, “‘Thus, somewhat counterintuitively, it was not those with the greatest resources who were most likely to be financially exploited, but those with the least,’ The study found poverty strongly associated with elder financial exploitation.”
These older Americans need lifesavers, largely in the form of their federal benefits (entitlements) — including Medicare, Medicaid, and Social Security.
This property is at risk through benefits trafficking, “an emerging crime that targets older adults and adults with disabilities for the purpose of gaining access to their monthly benefits and/or life savings,” as expressed by Anna Thomas, Special Victims Forensic Specialist, Division of Aging Services, Georgia Department of Human Services. In a California Elder Justice Coalition webinar, Thomas presented Locked Away: Human Trafficking of At-Risk Adults (November 17, 2022), chronicling crimes that constitute a “racketeering enterprise” (cue 45:26).
Thomas notes, “In Georgia we have come up with a way to respond …” (44:37), in part with a law, Benefits Trafficking (O.G.C.A. §6–5–102.1 2018), that mirrors Georgia’s already-existing human trafficking statute. It is the only law of its kind on the books, and it has inspired colleagues in other states who are advancing their efforts to combat benefits trafficking, which is so egregious and whose intent is similar to guardianship abuse.
Guardianship abuse and exploitation employ state-sanctioned means to steal a person’s benefits and net worth (personal property, life savings) in two ways: while they are alive under guardianship, and, should assets remain, after their death (at times, premature) during the settlement of their estate.
There can be embezzlement, billing for legal services at will, disposing of assets at a discount to individuals who benefit from sweetheart deals, when guardians and other affiliates serve as executors to reap a percentage of the estate, and much more.
To address and arrest guardianship as a means to defraud federal entitlements, the Elder Justice Coordinating Council can help coordinate council members, including the inspector generals at the Social Security Administration (SSA) Office of the Inspector General, Gail Ennis; the Veterans Administration (VA) Office of the Inspector General, Michael Missal; and the Department of Health and Human Services, Office of the Inspector General, Christi Grimm.
The EJCC can also work with council members, including the U.S. Securities and Exchange Commission, the U.S. Department of the Treasury and the Consumer Financial Protection Bureau, to address and arrest guardianship when used as a criminal means to reduce the taxable value of the assets of a person subject to guardianship (during their life) and their estate.
Denial of constitutional rights —
“Adopting elder justice approaches to elder abuse starts by changing how we think about abuse. This begins by adopting a conceptual framework that reflects a social justice and individual rights perspective,” observes Lisa Nerenberg, who asks, “For example, would labeling the violation of a right (e.g., the right to contest guardianship) as abuse lead to it being taken more seriously and compel action?” (2019; 102, 99)
Guardianship, despite its noble intention to protect vulnerable individuals, can infringe upon citizens’ constitutional and humanitarian rights even in the absence of blatant abuse or exploitation. For example, this can happen in the denial of legal representation, equal rights, and due process, effectively stripping individuals of their right to participate in decisions that significantly impact their lives.
In the ABA’s Commission on Law and Aging’s bi-monthly journal Bifocal, Nerenberg emphasizes (January 14, 2021):
“The Elder Justice Act [of 2009, S.795, H.R.2006] was a milestone in elder abuse prevention, not only because it was the first federal legislation to address abuse, but because it recast abuse, or freedom from it, as a right. This came after decades of framing and reframing elder abuse as a medical syndrome, a caregiving issue, and a public health problem.”
In The Elderly in Guardianship: A Crisis of Constitutional Proportions, Mark D. Andrews, whose work informs the discussion that follows, explains (1997, 76):
“Many current guardianship statutes hastily disavow the rights of an elder with minimal constitutional oversight. The guardianship process gives insufficient attention to indispensable constitutional safeguards, such as the rights to equal protection of the laws and due process…”
The U.S. Constitution expresses only one command twice, the “due process clause.” The Fifth Amendment (Cornell) says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment (Cornell), ratified in 1868 after our Civil War, underscores this Constitutional obligation to all states and the right of the federal government to intervene, should citizens’ constitutional rights be denied.
Beyond lack of due process, adult Americans’ constitutional rights are also violated when the following are deficient or denied: guarantee of representation by counsel; presumed innocence and clear and convincing evidence (vis-à-vis a respondent’s competency); adequate determination of legal capacity (employing a functional model approach) adhering to specific professional standards; least restrictive means and alternatives (over plenary guardianship); First Amendment freedom of expression and association (Cornell); presumably the Sixth Amendment right to obtain witnesses (Cornell); Seventh Amendment trial by jury (as probate sits without a jury); Fourteenth Amendment equal protection clause; provisions of the Americans with Disabilities Act (ADA) including its violation (Salzman 1990); and Olmstead, informed by the ADA. These are deficient or denied in guardianship, routinely — and in guardianship abuse and exploitation, intentionally.
Human rights ring hollow until coupled with a clapper of capability that allows responsibility to resound and send a strong pro-social signal community-wide and country-wide. Such capability is achieved in the Council, its members, and all of our states and sovereign tribes united in concern and capacity to maintain citizens’ constitutional and humanitarian rights through functional federalism.
Activities, tools, resources, or components (question 3)
Functional federalism —
Reporting on the best and worst states to retire in 2023, ranked (July 31, 2023), Bankrate, a consumer financial services company, analyzed five categories: affordability, overall well-being, the cost and quality of healthcare, weather, and crime. A comprehensive survey accounting for guardianship abuse and exploitation would likely present a starkly different narrative, revealing that some states are not safe for retirees to live and die in.
Yet, through their diverse approaches to guardianship and its abolition, states provide opportunities to strengthen our social contract, fostering deeper trust and responsibility between individuals and society.
Combatting guardianship harms starts with states and their citizens. But states cannot do it alone — especially in response to abuse and exploitation, criminal acts that are deplorable, unconstitutional, systemic, and nationwide. These crimes affect every community and cut across all racial, religious, cultural, economic, and geographic lines.
State-federal partnerships are key and must be turn-key. Effective communication, cooperation, and consultation among all governments and sectors is vital. Anything less will signal to perpetrators that they maintain the advantage.
In the spirit of functional federalism imbued with trust, justice includes maintaining robust, two-way avenues of coordination and consultation among federal, state, and local governments (GAO 2020) in recognition that “criminals and crime do not stop at jurisdictional or geographic boundaries” (National White Collar Crime Center). In guardianship, criminals know what states and counties are most vulnerable and appealing. Transporting citizens to such states amounts to (illicit) interstate commerce and human trafficking.
Functional federalism is our system of government in which power is shared between the central and state governments, sovereign first nations, and territories, with the goal of promoting efficiency and effectiveness to ensure that each level of government has the ability to address issues that are best handled at that level.
Functional federalism can sometimes create conflicts or tensions between different levels of government, particularly when there are disagreements about the appropriate scope and distribution of responsibilities. But to frame any conflict as one between the federal government and states (etc.) misses the point of our social covenant: that circles of support must center around each citizen. The Tenth Amendment provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” (Cornell)
“Personal efficacy is valued not because of reverence for individualism, but because a strong sense of personal efficacy is vital for successful adaptation and change regardless of whether it is achieved individually or by group members working together,” observes psychologist Albert Bandura (1995, 34).
Throughout our life course, our personal efficacy and individual rights are maintained by the equity in our social covenant and supported independence. However, the power and personal efficacy of citizens is denied in guardianship.
The Elder Justice Coordinating Council —
The Elder Justice Coordinating Council is coordinating federal agencies to advance the cause of elder justice, to help our future selves.
The Secretary of the Department of Health and Human Services is responsible for directing the Council, which was established by the Elder Justice Act (2010). This responsibility is assigned to the Administration on Aging within the Administration for Community Living.
Established by the Elder Justice Act (EJA 2010), the Secretary of HHS has responsibility for directing the Council; this responsibility is assigned to the Administration on Aging (AoA), within the Administration for Community Living (ACL).
Council duties, as defined by the Elder Justice Act, state that,
“The Council shall make recommendations to the Secretary [of HHS] for the coordination of activities of the Department of Health and Human Services, the Department of Justice, and other relevant Federal, State, local, and private agencies and entities, relating to elder abuse, neglect, and exploitation and other crimes against elders.”
As suggested by the EJA language and intent, the Department of Health and Human Services and the Department of Justice play a lead role. As of 2022, the Council has expanded to include 17 council members. Sister agencies have added much to interagency communication and coordination, informed by testimony from state and national experts at meetings and, via invitation, public input (in 2019 and now). The Council typically holds bi-annual meetings, most open to the public.
Federal references here may initially imply a one-way, top-down approach to federalism. But this is not the case with guardianship, as it is governed by state law. “Moreover, there has been no federal policy promoting adult guardianship reform,” observes the ABA Commission on Law and Aging (2020, 9), despite federal agencies’ dedicated individual and collective efforts. This ABA project and publication was funded by the Administration for Community Living.
Council Members —
Building on the Elder Justice Act, we will move beyond a reliance on guardianship by implementing a two-pronged approach. This strategy prioritizes preventing abuse while simultaneously developing effective legal and humanitarian alternatives.
The Attorney General is well positioned to have the Department of Justice take the lead in addressing and arresting guardianship abuse and exploitation as a state-sponsored white-collar crime. The Attorney General of the U.S. is a permanent member of the Council.
The Administration for Community Living (ACL) is already working with our aging and disability communities to explore alternatives to guardianship. The Administration on Aging within the ACL was assigned responsibility for implementing the Council by the Office of the Secretary of Health and Human Services.
Our state and federal acts empower us to act. Our state and federal agencies give us agency to act — to act against injustice and to act with self-determination.
Elder Justice Coordinating Council members (June 2022) are listed below. Agencies that have specific interest and expertise in addressing and arresting abuse and exploitation are followed by “guardianship”:
- AmeriCorps
- Consumer Financial Protection Bureau — guardianship
- Federal Communications Commission — guardianship
- Federal Trade Commission — guardianship
- Legal Services Corporation — guardianship
- Social Security Administration — guardianship
- U.S. Department of Agriculture
- U.S. Department of Health and Human Services — guardianship
- U.S. Department of Homeland Security — guardianship
- U.S. Department of Housing and Urban Development — guardianship
- U.S. Department of the Interior — guardianship
- U.S. Department of Justice — guardianship
- U.S. Department of Labor — guardianship
- U.S. Department of the Treasury — guardianship
- U.S. Department of Veterans Affairs — guardianship
- U.S. Postal Inspection Service — guardianship
- U.S. Securities and Exchange Commission — guardianship
Additional recommended Council member —
The Federal Bureau of Investigation (FBI).
The FBI (née the Bureau of Investigation) is no stranger to guardianship abuse, as chronicled by David Grann in Killers of the Flower Moon: the Osage murders and the birth of the FBI, which details the brutal murders of wealthy Osage people in the 1920s and the fledgling FBI’s efforts to solve the case. Guardianship served as a key tool for those seeking to control the wealth of Osage Nation members — their money and their lives. Grann chronicles (2017, ch.5):
“Over the tribe’s vehement objections, many Osage, including Lizzie and Anna, were deemed ‘incompetent,’ and were forced to have a local white guardian overseeing and authorizing all of their spending, down to the toothpaste they purchased at the corner store. One Osage who had served in World War I complained, ‘I fought in France for this country, and yet I am not allowed even to sign my own checks.’ The guardians were usually drawn from the ranks of the most prominent white citizens in Osage County.”
The successful investigation of the Osage murders marked a turning point for the BOI, housed in the U.S. Department of Justice. It bolstered Director J. Edgar Hoover’s reputation and helped secure increased funding and authority for the agency, paving the way for the establishment of the FBI in 1935.
As chronicled by David Grann (2017, ch. 20):
“For Hoover, the Osage murder investigation became a showcase for the modern bureau. As he had hoped, the case demonstrated to many around the country the need for a national, more professional, scientifically skilled force. The St. Louis Post-Dispatch wrote of the murders, ‘Sheriffs investigated and did nothing. State’s Attorneys investigated and did nothing. The Attorney General investigated and did nothing. It was only when the Government sent Department of Justice agents into the Osage country that law became a thing of majesty.’”
The FBI investigates white-collar crime. The White Collar Crimes Units of the Bureau and can continue commitment to elder justice when working with local prosecutors to investigate human trafficking of persons across state lines, embezzlement, conspiracy, fraud, theft, and money laundering.
FBI’s efforts are already complemented by the U.S. Department of Justice, as directed by the Elder Abuse Prevention and Prosecution Act (Sec.101(a)(2)):
2) INVESTIGATIVE SUPPORT. — The Attorney General, in consultation with the Director of the Federal Bureau of Investigation, shall, with respect to crimes relating to elder abuse, ensure the implementation of a regular and comprehensive training program to train agents of the Federal Bureau of Investigation in the investigation and prosecution of such crimes and the enforcement of laws related to elder abuse, which shall include —
(A) specialized strategies for communicating with and assisting elder abuse victims; and
(B) relevant forensic training relating to elder abuse.
EJCC Eight Recommendations —
All of the Council’s Eight (8) Recommendations for Increased Federal Involvement in Elder Justice(adopted in 2014) are pertinent to state and tribal efforts to combat guardianship abuse and exploitation in concert with state and local governments, other sectors, and citizens. The Council’s recommendations include:
Improving Response
- Support the Investigation and Prosecution of Elder Abuse Cases
- Enhance Services to Elder Abuse Victims
- Develop a National Adult Protective Services System
- Develop a Federal Elder Justice Research Agenda
Improving awareness and prevention
- Develop a Broad-Based Public Awareness Campaign
- Cross-disciplinary Training on Elder Abuse
- Combat Elder Financial Exploitation, including Abuse by Fiduciaries
- Improve Screening for Dementia and Cognitive Capacity, Financial Capacity, and Financial Exploitation
EJCC: Proposed ninth recommendation —
9: Foster lifelong supported independence informed by culturally competent elder justice services and support systems that embrace a life course approach and prioritize engagement with our disability communities.
For my rationale, refer to Benefits, equity (question 4), below.
How to help coordinate the Council’s efforts —
At the federal level, elder-justice efforts can be facilitated by designated federalism officials in agencies, as established by Executive Order 13132 (FR 1999, 43257), which states:
“…that each agency shall have an accountable process to ensure meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications. The executive order requires each agency to designate an official with principal responsibility for implementation but does not specify how agencies are to organize their intergovernmental offices or functions.”
As noted by the U.S. Government Accountability Office (2020), “The Office of Management and Budget (OMB) has primary responsibility for implementing E.O. 13132 and related implementation guidance, including a requirement for the designation of a federalism official.” To assist agencies in complying with E.O. 13132, OMB issued guidance in October 1999. To help federal agencies collaborate more, in 2012 the GAO published Managing for Results: Key Considerations for Implementing Interagency Collaborative Mechanisms. Separately, the White House Office of Intergovernmental Affairs engages directly with state, local, and tribal leaders.
In Federalism: Opportunities Exist to Improve Coordination and Consultation with State and Local Governments, the GAO (2020) reports:
“OMB could not identify any oversight steps it had taken to ensure federal agencies’ designation of a federalism official consistent with its guidance for implementation of the executive order. Taking steps to ensure federal agencies’ designation of a federalism official could help ensure that agencies have an accountable process in place for appropriately consulting with state and local governments.”
Partnerships for Public Service, in its Roadmap for Renewing our Federal Government, notes:
“…the federal government frequently operates in organizational silos that make it hard to work across jurisdictional boundaries to leverage resources and coordinate efforts to serve the public more effectively. To respond to current and future challenges, there must be increased coordination across government and sectors… [with reference to the GAO report] …ten of 24 surveyed federal agencies reported that they do not have a designated employee responsible for ensuring compliance with a presidential executive order that requires agencies to consult with state and local governments when making rules that will directly affect them.”
The GAO report (2020) is the most recent, so it is difficult to know if the 24 agencies addressed in the Chief Financial Officers (CFO) Act of 1990 have refined their approaches to these intergovernmental and federalism functions. For now, agency’s public-facing organization charts are likely the most recent information available, with web-based information contingent on regular updates. Another possibility is agencies’ Performance and Accountability Reports (GAO FY 2020, for example), as they provide a potential way to locate current information regarding organizational structures — and efforts to realize functional federalism.
Lindsay Laferriere, writing for the Partnerships for Public Service Federal Innovation Council, notes:
“Agencies typically define problems and solutions in terms that fit within existing organizational missions and authorities. However, the responsibility to solve a societal problem does not fall on one agency. As a result, agencies must work to solve challenges simultaneously and often together, focusing on the problem first rather than the existing policies, processes and structures that affect possible solutions. In short, the problems should drive the policy tools, not the reverse.” (July 29, 2021)
Laferriere explores how the federal government can use research and development (R&D) to solve our biggest societal challenges. Laferriere observes, “Rarely does government apply R&D principles to invest in developing scalable and transformative new, improved and more affordable service models.” As a solution, Laferriere proposes:
“Government could begin to change this trend in two ways. First, federal leaders could create a new R&D agency or subagency modeled after the Defense Advanced Research Projects Agency, or DARPA, which manages research and development initiatives focused on national security… Second, government could also create better innovation systems and interconnected relationships to enable entrepreneurs to easily pivot from one problem to another — a typical R&D strategy.”
Sister agencies can harness DARPA’s wisdom and expertise to educate and empower other federal and state agencies in their pursuit of advancing elder justice.
Council meetings, one example —
Elder justice efforts exemplify proactive federal, state, and community partnerships to achieve shared goals. Involvement with the non-profit and private sectors, states, and citizens augment their achievements.
In the spirit of functional federalism, the Council’s fall 2022 meeting demonstrated how states and the federal government can partner successfully to address guardianship. Efforts were informed by federal grants to states. For example, “ACL is awarding $1,999,016 over three years to assess and implement improvements in the handling of the adult guardianship and conservatorship process by state courts.” (September 28, 2022)
Coordination among federal agencies and sister states is aided, exemplified, and facilitated by the Council. The Council’s November 15, 2022, meeting (agenda, video, transcript, and remarks posted here) was convened by delegate chair Alison Barkoff, ACL acting administrator and assistant secretary for aging. Expert testimony began with a panel that included APS staff from two states who addressed the Impact of CRRSA and ARPA Funds on APS [Adult Protective Services] Program Investment: Keziel Wold, Associate Commissioner, Texas Department of Family and Protective Services (cue 14:46–25:45) and Tim Jackson, APS Administrator of the Missouri Department of Health & Senior Services (25:45–33:30). State-informed testimony was followed by a broad scope, national overview by Bill Benson, national policy advisor for the National Adult Protective Services Association (NAPSA), who addressed National Innovations in APS by NAPSA Membership (33:30- 44:03), which was followed by discussion (44:03–1:03:47). The second panel, which addressed the Significance of the Elder Justice Act, included Heather Mutchie of Purdue University, who presented a granular, data-informed EJCC Research Testimonial (1:03:47–1:14:53) in collaboration with colleague Marian Liuand NAPSA. Efforts were aided by states and territories who voluntarily provided their plans. Next, The Full Picture of the Elder Justice Act was presented by Bob Blancato, national coordinator of the Elder Justice Coalition (1:14:53–1:24:12). Beyond the subject-specific content, such meetings exemplify how the Council may choose to convene a future meeting to address guardianship.
The federal gvernment’s Cross-Agency Priority Goals aim to achieve greater collaboration to address critical needs and realize defined objectives. Performance measurement and management, informed by insights from the Office of Management and Budget (OMB) and the General Accounting Office (GAO), will be central to this initiative.
With a focus on priority goals and through Council coordination, federal agencies, states, and communities can work in concert, especially in the context of networks.
Networks —
At the federal level, elder justice networks are advanced by the Council and facilitated by designated federalism officials in agencies (Executive Order 13132), who recognize that “‘State and local officials’ means elected officials of State and local governments or their representative national organizations” (Section 1(d)).
Through networks, state and federal agencies help impart personal agency to concerned citizens and communities countrywide. Just as our “united states” are all-stars of different stripes, so are citizens, whose diversity imparts strength to our networks.
Jay A. Mancini, and Karen A. Roberto (2009, 254) observe:
“When dissimilar networks focus on common issues, the odds increase of making positive differences in communities…networks provide the framework for social action because it is through networks that community members develop relationships and feel connected to one another.”
Mancini and Roberto elaborate, “Community capacity aspects of social organization focus on the development of informal social networks to enhance community life and move communities closer to achieving their desired results, including community resilience” (2009, 247).
Like the warp and weft in a fabric, formal networks create structure and guidance, while informal networks create cohesion and strength. Together they weave a social safety net. Respectively and respectfully, they fashion our social fabric.
Networks are vital for communication, cooperation, and capacity. Yet, until recently, our understanding of “elder abuse” was hampered by its anti-social companion dyad “elder-abuser” at the expense of a more pro-social, engaged, networks-driven response to this social harm.
Elder justice efforts have been informed by social exchange theory, which was initially focused on dyadic exchange relations, too — until the publication of Richard M. Emerson’s seminal 1972 works on exchange network theory, including Exchange Relations and Network Structures. Fifty years on, robust research and practice have underscored the vital role of networks.
“The key to understanding people is understanding the ties between them; therefore, it was to the ties that we turned our focus,” write Nicholas A. Christakis and James H. Fowler in introducing Connected: The Surprising Power of Our Social Networks (2009, 8).
The Consumer Financial Protection Bureau (CFPB), a Council member, has significantly enhanced our understanding of networks and their practical application to advance elder justice, together.
CFPB’s Office for Older Americans has helped establish and fortify collaborative networks through its Elder Fraud Prevention and Response Networks initiative, which “brings together key stakeholders and resources to prevent, detect, and respond to elder financial exploitation in the community.”
Generally, “a network…is a sustained and largely voluntary collaboration, coalition, alliance, or partnership of private and public entities, organizations and individuals that works with or on behalf of older people.” (CFPB, May 2018, 11)
In 2015, CFPB’s nascent network initiative was informed by a year-long study, Fighting Elder Financial Exploitation through Community Networks: Report and Recommendations (August 23, 2016), that included research and recommendations to guide CFPB and networks nationwide. In 2017, CFPB embarked on a network development initiative that included Report and Recommendations: Fighting Elder Financial Exploitation through Community Networks and a companion, A Resource Guide for Elder Financial Exploitation Prevention and Response Networks (May 2018). In 2019, CFPB offered a webinar (May 30, recording, transcript). In 2020, CFPB released the Elder Fraud Prevention Network Development Guide, which “provides step-by-step materials to help communities form networks to increase their capacity to prevent and respond to this crime.”
CFPB has developed robust resources for stakeholders to reconvene and establish a network, and expand capabilities. The guide contains downloadable resources, including templates, fillable worksheets, checklists, discussion guides, tips for networks, and much more — all spurred and facilitated by examples of network goals, action steps, and demonstrated success.
Citizens seeking existing networks can search the Elder Justice Network Locator (U.S. Department of Justice) to locate local and state organizations, agencies, and coalitions. Two points of contact in communities include those who serve and save: the country’s six-hundred-plus area agencies on aging, represented by USAging, whose “members help older adults and people with disabilities throughout the United States live with optimal health, well-being, independence and dignity in their homes and communities”; and state adult protective services (APS) programs, represented by NAPSA, whose mission is to “strengthen the capacity of APS…to recognize, report, and respond to the needs of elders and adults with disabilities who are the victims of abuse, neglect, or exploitation.”
In 2023, the CFPB Office for Older Americans launched a webinar series titled Promising Practices from Successful Elder Fraud Prevention and Response Networks. Co-leaders include webinar series host Jenefer Duane, senior program analyst and program manager, elder fraud prevention and response networks program, and Lisa Schifferle, senior policy analyst, Office for Older Americans. The goal of the ongoing series is to convene seemingly disparate stakeholders to explore how they can build or augment collaborative networks to prevent and resolve cases of elder financial exploitation. The series is prefaced with New Resources for Elder Fraud Prevention and Response Networks. (February 1, 2023; recording, slides) Efforts were chronicled by experts from Michigan, South Carolina, New York, Hawai’i, and Florida. A sea change is evident from coast to coast, to coast, to coast, to coast, extending into our heartland, which blankets and feeds us.
The Promising Practices Part 1 webinar featured network leaders who addressed strategies for funding elder justice networks, cross-discipline training, and more. Network speakers included Jennifer Blanck (Michigan Elder Justice Coordinating Council), Scott Ehlfeldt (Prosecuting Attorneys Association of Michigan); Susan Ingles (South Carolina Legal Services), and Kay Hightower (South Carolina Department of Aging).
In closing, Paul L. Caccamise, vice president for program at Lifespan of Greater Rochester, highlighted the Office for Victims of Crime, Office of Justice Programs at the U.S. Department of Justice. The agency funded an initiative, “Transforming America’s Response to Older Victims: Developing and Supporting Statewide Elder Justice Coalitions and Training and Technical Assistance Program,” which supports Lifespan, an organization that serves as the lead agency of a consortium of elder justice organizations and specialists, all aiming to realize the project’s stated intent, state by state. (February 8, 2023, recording, slides)
The Promising Practices Part 2 webinar featured network leaders who addressed how state-level elder justice networks effectively support locally based sub-networks and more. Network speakers included: Brian Ishikawa (Bank of Hawai’i), Mary Gilmeister (Macha), Leslie Andrews (Elder Options, Florida), and Amy Thomas (Elder Options). (February 15, 2023, recording, slides)
The CFPB Elder Fraud Prevention Network Development Guide and companion training continue to help communities countrywide to plan, convene, host, establish networks, expand network capabilities, and harness network resources.
Harness the third sector —
For elder justice, communication and cooperation among sister states is being achieved by the self-descriptive, nascent National Network of State Elder Justice Coalitions (NNSEJC, National Network), launched in 2018 by a founding six-member steering committee representing five states. Each coalition member presented on its respective programs during a panel at the American Society on Aging conference. The National Network then put out a call to see if there were other state coalitions and invited them to join in. Personnel from the U.S. Department Justice have participated on the National Network’s advisory committee.
As described by the National Network’s founders in Building a National Elder Justice Movement, State by State (Generations, Journal of the American Society on Aging, Spring 2020, vol. 44 no. 1, pp. 111–116):
“The purposes of the group are five-fold: to help statewide elder justice coalitions with multiple professional constituencies attain their common goals; to collect and make available innovative models and strategic approaches to strengthen members’ capacity and program efforts; to generate networking opportunities for state elder justice coalitions; to assist new multidisciplinary state elder justice projects to develop broad-based sustainable coalitions; and to address state elder justice coalitions’ roles in public policy.”
Let’s not be ageist about the youth of the NNSEJC and its capacity. It’s gaining ground nationwide. It has also helped serve as a catalyst for a fast-growing initiative among sister states, spurred by the U.S. Department of Justice. Reported by the DOJ Office for Victims of Crime:
“In October (2022), the U.S. Department of Justice awarded a three-year, $3,750,000 grant to Lifespan of Greater Rochester, New York, that ‘…will serve as the lead agency of a consortium of elder justice organizations and specialists with many years of experience and depth of expertise in the field to establish a [center].’ The National Center for State and Tribal Elder Justice Coalitions [NCSTEJC] at Lifespan of Greater Rochester (hosted by the New York State Coalition on Elder Abuse), in collaboration with the U.S. Department of Justice (DOJ) Office for Victims of Crime, was established in October 2022. On April 3, 2023, the center announced a Request for Proposals for funding to establish new statewide or tribal elder justice coalitions or to enhance the operation of existing coalitions.”
As presented by Paul L. Caccamise during an Office for Older Americans, Consumer Financial Protection Bureau webinar (February 8, 2023), the goals of the DOJ-funded initiative are to:
- Support statewide efforts to develop new coalitions and expand existing Elder Justice Coalitions;
- Provide evidence-based, trauma-informed training and technical assistance to existing coalitions across the Nation;
- Make and monitor sub-awards to seven Coalitions to support their growth and expansion; and
- Contribute to the growth of Elder Justice Coalitions as a field of practice.
On December 15, 2023, the National Center for State and Tribal Elder Justice Coalitions at Lifespan of Greater Rochester, in collaboration with the U.S. Department of Justice, Office for Victims of Crime (OVC), announced a Request for Proposal for Program Evaluation, “to assess the achievement of project goals and the success of the center activities in supporting the growth of state and tribal elder justice coalitions through training, and technical assistance.”
Announced in early 2024, eight (of 18) coalitions were sub-awarded 2023 grants. These include: California (enhanced), Colorado (new), Maine (enhanced), Missouri (new), Rhode Island (enhanced), Texas (new), University of North Dakota: tribal (new), Wisconsin (new).
The strategic significance of statewide coalitions is emphasized in the Annual Report to Congress on Department of Justice Activities to Combat Elder Fraud and Abuse by Attorney General Merrick Garland, U.S. Department of Justice (October 18, 2022). In “A message from Kristina Rose, Director, Office for Victims of Crime, on Forthcoming Statewide Elder Justice Coalitions.” Director Rose notes:
“Older Americans are targets for multiple forms of abuse (e.g., guardianship abuse, financial exploitation, fraud, and scams) that, when coupled with age, can be barriers to accessing services… These challenges are compounded further because the victim services field has little dedicated funding to support Elder Justice Coalitions… Therefore, OVC is funding a new national training and technical assistance effort to support the development or expansion of statewide Elder Justice Coalitions…” (77)
Soon, all states will have statewide and tribal elder justice coalitions to advance citizens’ concern, capacity, and coordination through networks, spurred by the support of DOJ and sister agencies.
As exemplified and achieved by CFPB, NNSEJC, and NCSTEJC, networks help address and arrest elder abuse and financial exploitation in all arenas, including guardianship — especially when coupled with a responsive regulation approach by state and federal agencies.
Apply a responsive regulation approach —
To arrest criminal acts and regain trust, a two-pronged campaign must:
- Hold both individuals and courts accountable for the criminal consequences of their actions, toward prosecution informed by an attribution of responsibility (Schmidt, McGrimmon, and Dilks 2022, 47). For example, a primary goal of the New York State Legislature in 1986 was to deter white-collar crime by making Grand Larceny in the First Degree (New York Penal Law 155.42) a Class B felony, which imposes a mandatory prison term.
- Achieve systemic change in courts that sponsor guardianships and provide the environment for criminal acts.
Schmidt and colleagues conclude, “…the environment in which white-collar crime takes place strongly affects the attribution of responsibility for the crime and its subsequent punishment” and that strategies must focus on both “bad apples” and “corrupting barrels” (52–53; ref. Scholten and Ellemers, 2016).
Efforts must extend beyond accountability and ‘just deserts’ for individuals (Braithwaite 1982) to the prevention of abuse and exploitation by organizations such as state courts. Concurrently, efforts must extend beyond “ritualistic regulation that gives the appearance of being tough without compelling major substantive change.” (Braithwaite, Makkai, Braithwaite 2007, 220)
Deliberate and flexible responsive regulation is applicable here as long as it is understood that, in the case of guardianship, the state is regulating its own “business.” The involvement of third parties is vital. As defined and practiced by John Braithwaite:
“Responsive regulation is about ‘tripartism’ in regulation. It highlights the limits of regulation as a transaction between the state and business. It argues that unless there is some third party (or a number of them) in the regulatory game, regulation will be captured and corrupted by money power.”
Prosocial norms help mitigate such systemic social harms. Sally S. Simpson (2013, 325) recognizes that “Responsive regulation…emphasizes the moral and prosocial influences that guide potential offenders.” Simpson (324) observes:
“On the responsive regulation side, abundant research supports the notion that norms and morality shape offender decision making and that behavior can be positively or negatively shaped by how regulators respond to violators.”
Braithwaite conceptually arranges responsive regulation into two pyramids: one of sanctions and another of support, “to pick problems and fix them but also to pick strengths and expand them,” respectively. The support pyramid may include education, praise, award of grants, other incentives, and professional acclaim. The sanctions pyramid starts with less interventionist sanctions (capacity building, restorative) and, should these fail, advances to stronger sanctions (deterrence, incapacitation), “Signaling to stakeholders the capacity to escalate to ‘the tough stuff’ higher up the pyramid motivates cooperative problem solving at the base of the pyramid.” (December 14, 2022)
Simpson (2013) recognizes that “…the punishment of white-collar offenders (for individuals and companies) carries the potential for significant legal and extralegal costs. Responsive regulation, in contrast, emphasizes the moral and prosocial influences that guide potential offenders.” Simpson adds, “On the responsive regulation side, abundant research supports the notion that norms and morality shape offender decision making and that behavior can be positively or negatively shaped by how regulators respond to violators.” Moving forward, pro-social norms can help mitigate social harms.
Guardianship abuse and exploitation are state-sanctioned. Specifically, “…state-routinized activities include those expressions of ‘corruption,’ ‘extortion,’ and ‘professional theft’ that are institutionalized or legally sanctioned through legislation and court decision.” (Barak 2015)
Being a social harm, guardianship abuse and exploitation as white-collar crime extend beyond structural violence (Galtung 1969), which “describes social structures… that stop individuals, groups, and societies from reaching their full potential” (Canning and Tombs 2021, 57) to include institutional violence, which is “a form of violence that can be understood as a means of force which is not simply acted upon, but organized and administered through legitimate means” (Cooper and Whyte 2017, 23; in Canning and Tombs).
Proactive and preventive approaches recognize that “crime is not just a question of who breaks the law, but also about who makes the law and how it is enforced.” (The Open University, accessed 12/14/22) To date, “the striking gap between law and practice has been daunting for advocates seeking to strengthen individual rights and ensure accountability,” as expressed by the ABA Committee on Law and Aging in its guardianship-focused WINGS Briefing Paper, supported by ACL (c. 2020, 8).
Regulatory efforts toward systemic reform of guardianship through legislation will work when coupled with greater interventionist sanctions of bad actors, in part through severe, swift, and certain punishment — including time served in moderate or maximum security prisons, fines, restitution to victims (or their legatees), loss of professional licenses, and private lawsuits.
For white-collar criminals, prison environments will lend new meaning to guardianship. In Convenience Triangle in White-Collar Crime, Petter Gottschalk explains special sensitivity hypothesis, which “suggests that white-collar criminals suffer much more from incarceration than regular street criminals” (2019, 89). Gottschalk elaborates:
“The special sensitivity hypothesis may seem particularly relevant in prison settings that suffer from poor management and that experience high levels of inmate violence and other forms of victimization. In such environments, white-collar inmates can prove to be attractive targets for other inmates, while at the same time they suffer from neglect by lack of guardianship (Stadler et al., 2011).”
The numbers numb us —
In guardianship, the numbers, or lack of numbers, numb us.
Financial exploitation lies at the heart of most guardianship abuse, making individuals under guardianship not just collateral damage but the deliberate targets of predatory actions. Data is available that documents the vast wealth of older adults. But states have no idea how many of their citizens are subject to guardianship and how they are being treated or mistreated. Or if they have died — at times, prematurely.
Despite repeated calls for attention, states have no idea how many persons are subject to guardianship across America. “The collection of reliable data is besieged by a number of problems,” observes the Center for Elders and the Courts, National Center for State Courts (2023). “The extent of elder abuse [financial exploitation, included] by guardians nationally is unknown due to limited data on the numbers of guardians serving older adults, older adults in guardianships, and cases of elder abuse by a guardian,” reports the U.S. Government Accountability Office (2016).
With reference to the “1.3 million” citizens subject to guardianship, David Godfrey notes, “ …that is the same guess on how many guardianships that we have been hearing for 30 years.” The probable figure is much more. States have no idea. Godfrey concludes, “…the bottom line is that in nearly every state there is no reliable data on how many adults have a guardian, what the needs of the person are and how those needs are being met” (2022, 97). This harsh reality is an indication that courts cannot be trusted to achieve change alone — or to serve and save our most vulnerable citizens today.
Due in part to the nefarious nature of this white-collar crime, such data is unavailable. Close connections and even collaboration among actors in the court system, which appears to be intentionally obscured by insufficient data and accountability, allow almost all guardianships — good and bad — to be inadequately monitored.
The lack of reliable guardianship data and monitoring has many consequences. It conceals abuse and exploitation, obscures oversight, discourages reporting, obstructs investigations, conceals trends, inhibits research and evaluation, hinders policy development and legislation, impedes resource allocation, undermines public trust, and places older adults at risk.
Guardianship is shrouded in a veil of secrecy and a lack of accountability. This raises a series of unsettling questions, prompting citizens to wonder if there is an underlying motive to conceal the true extent of guardianship practices. Why is it so difficult to ascertain the exact number of individuals under guardianship across the country? Why are guardianship hearings often conducted ex parte, excluding interested parties and limiting the ability of stakeholders to monitor and intervene? Why does the practice of annual reporting exhibit low compliance, inconsistency, tardiness, and poor quality — even though it is mandated in most states?
The lack of reliable data appears to be intentional and instrumental to guardianship as a state-sponsored white-collar crime. Congressman Claude Pepper’s stark words, uttered at his 1987 congressional hearing Abuses in Guardianship of the Elderly and Infirm: A National Disgrace, continue to resonate in this vacuum of accountability:
“The typical ward has fewer rights than the typical convicted felon… By appointing a guardian, the court entrusts to someone else the power to choose where they will live, what medical treatment they will get and, in rare cases, when they will die. In one short sentence, it is the most punitive civil penalty that can be levied against an American citizen, with the exception…of the death penalty.”
The number of persons in prison is tracked through the Bureau of Justice Statistics (BJS), the primary statistical agency of the U.S. Department of Justice, Office of Justice Programs. According to BJS, there were 1,230,100 individuals incarcerated in adult correctional facilities in the United States on December 31, 2022. This total includes individuals under the jurisdiction of state and federal correctional authorities. Meanwhile, the number of individuals under guardianship remains unknown. In Maine, for example, “Probate courts only recently began keeping track of guardianships. Several do not know how many people are under guardianship in their county, or if these adults are alive or dead,” reports Samantha Hogan of The Maine Monitor (December 17, 2023).
BJS can play a pivotal role in tackling guardianship abuse and exploitation through enhanced data collection on the number and well-being of persons subject to guardianship. Although guardianship falls primarily under the purview of individual states, BJS can serve as a central resource and partner to states in their endeavors to combat abuse and exploitation, improve data collection, hold bad actors accountable, and protect citizens subject to or vulnerable to guardianship.
BJS has explored elder abuse for years. Crimes Against the Elderly, 2003–2013, examined “patterns of victimization over time” (Rachel E. Morgan and Britney J. Mason, 2014). More recently, in 2017 BJS funded a granular third-party study by the Urban Institute (Kamala Mallik-Kane and colleagues, 2021, 1) in recognition that:
“Traditional crime statistics underestimate the occurrence of elder abuse and lack the detail required to fully understand and prevent this form of victimization. Because Adult Protective Services (APS) agencies are often first responders to elder abuse, this study examined the use of APS data as an alternative metric to monitor the scope of the problem and plan for future needs as the U.S. population ages.”
Informed by the CDC (2014), BJS taxonomy considered six forms of interpersonal elder abuse “in which there is an expectation of trust between the victim and perpetrator” (35). These included financial abuse and exploitation that, in turn, included “improper use of guardianship.” (31) “Most APS agencies (93%) gathered information on whether the alleged perpetrator had guardianship over or power of attorney for the victim.” (76) “The study found both potential for and challenges to compiling APS-based elder abuse statistics across states because of variation in elder abuse laws, agencies’ investigative jurisdictions, and data system capacity (4).
One challenge for BJS is that guardianship itself is a civil issue rather than a criminal one — even though guardianship can lead to crime. So collecting the necessary baseline data on the number of persons under guardianship is a bit outside of the BJS purview. One first step is to add a question to the National Crime Victimization Survey to ask whether an adult in the household (either with a disability or over the age of 65) is under a guardianship agreement while recognizing there are measurement challenges with this approach. This added question will also miss many individuals under guardianship living in group quarters or a nursing facility. In the latter, guardianship abuse is a chronic issue highlighted in an article titled To Collect Debts, Nursing Homes Are Seizing Control Over Patients by Nina Bernstein (January 25, 2015), for example.
In Congress, U.S. Senate Special Committee on Aging Chairman Bob Casey (D-PA) and Ranking Member Mike Braun (R-IN) urge examination of guardianship laws (May 31, 2023), in a letter to The Honorable Gene L. Dodaro, Comptroller General, United States Government Accountability Office (GAO). The senators note, “There is a lack of data on guardianships in the United States” and request “GAO examine and report on the following issues (subsections of these queries are not included here):
1. How many guardianships are currently active in the United States?
2. To what extent is NAMRS able to identify cases of elder abuse where a guardian was involved?
3. How do selected states treat petitions to end guardianships, and what challenges do states face in administering their guardianship programs?
4. When adopted by a state, what impact do the changes in the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act [at ULC] have on individuals subject to or under consideration for a guardianship arrangement?
5. What federal policies assist states in the oversight of guardianships, and how can federal policy help states seeking to adopt less restrictive alternatives such as those outlined in the ULC model guardianship law?”
Following a year-long investigation, the U.S. Senate Special Committee on Aging released a report, “Ensuring Trust: Strengthening State Efforts to Overhaul the Guardianship Process and Protect Older Americans.” (November 2018, 9; report)
“Three recurring themes emerged during the course of the Committee’s investigation: 1) the absence of consistent and reliable data related to guardianship arrangements; 2) the need for improved oversight of guardians; and 3) consideration for increased use of less-restrictive alternatives to guardianship. The Senate Aging Committee received more than 100 comments, which helped to inform its work; many of those comments are cited in this report.”
Of added interest, “In fiscal year 2021, NIJ entered into an independent consultant agreement with two subject matter experts to conduct an environmental scan of guardianship and conservatorship abuse and fraud, and identify opportunities to advance knowledge through research or data collection,” as announced by Attorney General Merrick Garland in the Annual Report to Congress on Department of Justice Activities to Combat Elder Fraud and Abuse. (U.S. DOJ, October 18, 2022)
Stop the bleeding —
States cannot do it alone. Guardianship abuse and exploitation are systemic and nationwide. These crimes demand a coordinated nationwide response, starting in each state in partnership with the federal agencies and initiatives described here.
The Elder Abuse Prevention and Prosecution Act (EAPPA via US DOJ site; Public Law 115–70; October 18, 2017), introduced by Senator Grassley, is a potential game changer. EAPPA directs that the Attorney General shall designate not less than one Assistant United States Attorney to serve as the Elder Justice Coordinator in each of the 94 U.S. Attorneys’ Offices (in federal judicial districts). Coordinator training has been partly provided the U.S. Department of Justice.
EAPPA efforts relating to elder abuse include having coordinators serve as the legal counsel for the district; prosecuting, or assisting in the prosecution of, elder abuse cases; conducting public outreach and awareness activities; and ensuring the collection of data (Title I). Coordination efforts include training agents of the Federal Bureau of Investigation (Title I); improved data collection and federal coordination (Title II); with the Office for Victims of Crime, providing enhanced victim assistance to citizens who have suffered from harm imposed by elder abuse (Title III); and imposing enhanced penalty for fraud (Title IV).
EAPPA Title V addresses court-appointed guardianship oversight activities under the Elder Justice Act of 2009.
“…programs to assess the fairness, effectiveness, timeliness, safety, integrity, and accessibility of adult guardianship and conservatorship proceedings, including the appointment and the monitoring of the performance of court-appointed guardians and conservators, and to implement changes deemed necessary as a result of the assessments such as mandating background checks for all potential guardians and conservators, and implementing systems to enable the annual accountings and other required conservatorship and guardianship filings to be completed, filed, and reviewed electronically in order to simplify the filing process for conservators and guardians and better enable courts to identify discrepancies and detect fraud and the exploitation of protected persons.”
EAPPA Title V also addresses GAO reports, outreach to state and local law enforcement, model power of attorney legislation, and best practices and model legislation for guardianship proceedings.
Separately, on March 30, 2022, the Attorney General Merrick B. Garland:
“…announced the appointment of 12 U.S. Attorneys to serve on the Attorney General’s Advisory Committee of U.S. Attorneys (AGAC). Created in 1973, the AGAC advises the Attorney General on matters of policy, procedure, and management impacting the Offices of the U.S. Attorneys and elevates the voices of U.S. Attorneys in Department policies.”
Announced on July 11, 2022, The Honorable Breon Peace, United States Attorney for the Eastern District of New York, was selected as the Chairperson of the White Collar Fraud subcommittee for the Attorney General’s Advisory Committee (AGAC).
“As the leader of the subcommittee, Mr. Peace will play a key role in making recommendations to the AGAC to facilitate the prevention, investigation and prosecution of various financially motivated, non-violent crimes including mail and wire fraud, bank fraud, health care fraud, tax fraud, securities and commodities fraud, and identity theft.”
Benefits, equity (question 4)
There are no barriers to the Council’s successful incorporation of my information and its implementation by members. But, despite progress, barriers continue to impede our pursuit of elder justice. The Council, working alongside states and stakeholders, has a critical role in clearing the path towards a more comprehensive system of elder justice.
The Council’s strategies for overcoming obstacles are outlined in my proposed EJCC Ninth Recommendation:
- 9 — Foster lifelong supported independence informed by culturally competent elder justice strategy, services, and support systems that embrace a life course approach and prioritize engagement with our disability communities.
Assume a life course approach to address aging and ageism —
Elder justice is in its infancy compared to other realms that define our legal, ethical, and moral obligations. For humanity, elder justice can help complete, not compete with, other causes mindful of G.W.F. Hegel’s words (EB, 1999), paraphrased that,
Elder justice has made too exclusive a claim in addressing ageism. The fight against ageism needs a broader approach than elder justice alone can provide. While elder justice plays a vital role, dismantling ageism requires a societal shift. Ageism isn’t an affliction that launches late in life; it starts at the starting gate, at birth.
By focusing solely on how ageism impacts older adults, we overlook the chance to tackle ageism within the context of wider societal inequities that persist throughout life. Cumulative intersectional inequities do not have an expiration date. Neither does justice. By embracing a life course perspective, we can achieve ageless equity, ensuring fairness across all stages of life.
Ageism, when rooted in prejudice against older adults, fosters disassociation and segregation. Ambivalent, ageist persons are primed to pivot away from older adults. As a result, elder justice campaigns may unintentionally backfire when guided by a laser focus on ageism against older adults, only.
By adopting longitudinal and life course approaches to aging:
- We will recognize that aging and the experience of ageism are lifelong realities with cumulative and cascading effects.
- Elder justice stakeholders and other champions of justice will better understand how other forms of inequity across the lifespan interact with ageism.
- We will foster an environment that facilitates open communication and collaboration to address cumulative inequities. This will impart a hybrid vigor to addressing social harms and to justice.
Elder justice colleagues will learn more from experts in seemingly disparate disciplines who, in turn, will better understand that (George L. Maddox, 1970, 17),
Ageism inflicted on older adults often flies under the radar compared to some highly charged social issues. But it’s that very quality that makes it a surprisingly strong leverage point for addressing other social harms. Elder justice provides a subtle entry point. Ageism eventually affects everyone if they are lucky enough to live a long life. Everyone can relate to the experience of aging. Because ageism isn’t as politically charged, it can be a gateway to discussing broader issues. Conversations about valuing older adults’ experience can naturally lead to discussions about valuing diversity of thought and experience in general. This creates a safe space to address other forms of discrimination without immediately triggering defensive reactions. In this safe space lies our future.
Cradled by the promise of trust, elder justice helps protect our future selves, now. This proactive, preventive approach lies at the heart of forward-looking justice. In this environment, cumulative and intersectional inequities can be guided by pragmatic prospection, as described by Roy F. Baumeister and Kathleen D. Vohs (2016, 3):
“In the present, the past is more knowable than the future — but people think far more about the future than the past. Both facts derive from the principle that the future can be changed whereas the past cannot. Our theory of pragmatic prospection holds that people think about the future so as to guide actions to bring about desirable outcomes. It proposes that thoughts about the future begin by imagining what one wants to happen, which is thus initially optimistic. A second stage of such prospective thinking maps out how to bring that about, and this stage is marked by consideration of obstacles, requisite steps, and other potential problems, and so it tends toward cautious realism and even pessimism.”
“Nothing about us without us,” through our life course —
By adopting a life course approach to elder justice, we can foster deeper collaboration with our disability communities, offering valuable insights for both sides. This provides a proactive approach to aging into disability and with disability (Polly Yeung and Mary Breheny 2022).
Driven by its mission, the Administration for Community Living affirms that,
“All people, regardless of age or disability, should be able to live independently and participate fully in their communities. Every person should have the right to make choices and to control the decisions in and about their lives. This right to self-determination includes decisions about their homes and work, as well as all the other daily choices most adults make without a second thought.”
Throughout our life course, complex, compounded commissions, omissions, and oppressions result in cumulative and intersectional inequities. Here, a word of caution: Let’s not be indiscriminate about forms of discrimination or privilege. Each category is a function of a different logic, each demands a distinct strategy for persons who are discriminated against to achieve agency and self-determination. Yet disability rights and elder justice champions have much to learn together, especially in the realm of guardianship as triggered by (actual or perceived) legal disability.
Before closing, I will offer one example of disability rights’ efforts to address guardianship. Disability Rights New York (DRNY) provides free legal and advocacy services to children and adults with disabilities. DRNY is committed to enabling those we serve to exercise their own life choices and fully participate in community life. In February 2024, DRNY filed a complaint against New York State, The Unified Court System of the State of New York, and select judges for subjecting New Yorkers to illegal and discriminatory guardianships under New York State Surrogate’s Court Procedure Act Article 17-a.
Timothy A. Clune, Executive Director, DRNY, explained (February 7, 2024):
“Article 17-a is an archaic law that strips away every civil right a person has. Decisions like who to love, where to live, who to vote for, where to go to school, where to get health care, and how to practice religion, are all taken away under a 17-a guardianship. There currently are ways to protect people without adherence to such a draconian system. New York State claims to care, I say prove it.”
DRNY emphasized,
“We are filing this complaint to ensure that the rights of individuals subjected to guardianship proceedings are protected and that New York ends the use of an unconstitutional and discriminatory law that strips them of their fundamental rights.”
Allan T. Sutherland emphasized, “We have to recognize that disablement is not merely the physical state of a small minority of people. It is the normal condition of humanity.” (1981, 18) Our conditioned existence includes joy and suffering — the latter, at times due to individual impairment. Yet, all too often suffering is compounded and confounded by implicit and explicit ableism and ageism, by a disrespect of heightened ability (over a label of disability), by the injustice of ostracism, and by unrighteousness.
In the spirit of functional federalism, the Council can work in concert with its members, states, tribes, and communities nationwide to advance elder justice and disability rights guided by a life course perspective.
Our “united states” extend beyond any geographic and political confines. As a state, as a condition, our united states are a condition of humanity. Countrywide, the state of our communities is dependent on the state of our states, our united states: all-stars of different stripes united in functional federalism and united in raising the capability of all citizens, who are all-stars of different stripes, too.
Elder abuse and exploitation is a troubling nationwide trend. But it’s not our destiny. We can do better, and we must.
The campaign color of elder justice is purple, an equal measure of red and blue. The path of elder justice will crisscross communities statewide and nationwide with support from both sides of the aisle.
In recognition of Edwin L. Walker
Our colleagues in public service are all-stars, too.
One brilliant star is Edwin L. Walker, Deputy Assistant Secretary for Aging, Administration for Community Living, U.S. Department of Health and Human Services (HHS). After forty years of public service, Edwin announced his March retirement, with ACL passing the baton on to his successor Kari Benson. Edward reflected (January 26, 2024):
“Since 1984, it has been my honor and privilege to be a public servant at the state and federal levels focused on policies and programs designed to improve the health and well-being of older adults and help them maintain their independence, dignity, and quality of lif. So much has changed in that time, but the one constant is that I have always viewed my role as a representative of older adults and of all levels of the National Aging Services Network that serves them.”
In an April 2023 interview with Edwin, Alicia M. Colombo noted, “Edwin L. Walker ‘Fell into the field of aging, then fell in love with it.’”
March 5, 2024, Senator Robert P. Casey, Jr. and colleagues submitted a resolution, S. RES. 571 “Honoring the leadership and celebrating the retirement of Edwin Walker, the Deputy Assistant Secretary for Aging for the Administration for Community Living.” The resolution was referred to the Committee on Health, Education, Labor, and Pensions.
The first week of May, Partnership for Public Service (PPS) will celebrate Public Service Recognition Week “to honor the people who serve our nation as federal, state, county, local and tribal government employees.” PPS has an interface where we can all Thank a Public Servant (scroll down) — Edwin L. Walker, included.
Gratitude
I am grateful to the following persons for their work and/or review, which contributed to this article and the cause:
- Anne Alvesalo-Kuusi; Professor, Laws; Vice Dean (Research), Faculty of Law, University of Turku
- Leslie Andrews, Elder Options (Florida)
- Gregg Barak, Co-Editor-in Chief, Journal of White Collar and Corporate Crime; Professor Emeritus, Sociology, Anthropology and Criminology, Eastern Michigan University
- Alison Barkoff, ACL Administrator and Assistant Secretary for Aging, Administration for Community Living, U.S. Department of Health and Human Services
- Scott R. Beach, Director of Survey Research, University Center for Social and Urban Research (UCSUR), Department of Psychology
- Bill Benson, National Policy Advisor, National Adult Protective Services Association
- Nina Bernstein, Investigative Reporter (past), The New York Times,
- Richard Black, Co-Director, Center for Estate Administration Reform
- Terri Black, Co-Director, Center for Estate Administration Reform
- Mark Blyth, Professor of Political Economy, Watson Institute, Brown University
- Bob Blancato, National Coordinator, Elder Justice Coalition
- Jennifer Blanck, MiCAFENetwork Coordinator, Michigan Elder Justice Coordinating Council
- John Braithwaite, Professor and Founder, RegNet (the Regulatory Institutions Network), Australian National University
- Risa Breckman, Executive Director (retired), Center for Elder Abuse Solutions (née the NYC Elder Abuse Center)
- Paul L. Caccamise, Vice President for Program, Lifespan of Greater Rochester [NY]
- Victoria Canning, Professor of Criminology, Lancaster University
- E. Ann Carson, Statistician, U.S. Department of Homeland Security
- Ginny Casazza, Past President, National Guardianship Association
- Nicholas A. Christakis, Sterling Professor of Social and Natural Science, Sociology, Yale University
- Leanne Clark-Shirley, President & CEO, American Society on Aging
- Marie-Therese Connelly, Consultant, Elder Justice Lab (profile at USC Center for Elder Justice), author of The Measure of Our Age
- Karen Cook, Ray Lyman Wilbur Professor of Sociology, Sociology, Stanford University
- Stephen Deane, Senior Director; Capital Markets Policy, the Americas; CFA Institute
- Debbie Deem, FBI Victim Specialist (retired), Ventura County [California] FAST Coordinator, Deem Strategies
- Marguerite DeLiema, Assistant Research Professor, School of Social Work, University of Minnesota, Twin Cities
- Hilary Dalin, Director, Office of Elder Justice and Adult Protective Services, Administration for Community Living, U.S. Department of Health and Human Services
- Lisa M. Dilks, Associate Professor of Sociology, Department of Sociology and Anthropology, West Virginia University
- Jenefer Duane, Older Americans Senior Program Analyst (head, Elder Financial Protection and Response Network program), Consumer Financial Protection Bureau
- Scott Ehlfeldt, Elder Justice Project Director, Prosecuting Attorneys Association of Michigan
- John Eligon, Johannesburg Bureau Chief, The New York Times
- Naomi Ellemers, Distinguished University Professor, Department of Social and Behavioural Sciences, Utrecht University
- Howard M Fillit; Clinical Professor; Geriatrics, Palliative Care; Mount Sinai School of Medicine
- James H. Fowler, Professor of Political Science, Department of Political Science, UC San Diego
- Alex Gailey, Lead Data Reporter, Personal Finance, Bankrate
- Michael Gamel-McCormick, Disability Policy Director; Senator Bob Casey, Chairman, U.S. Senate Special Committee on Aging
- Mary Gilmeister, President & CEO, Macha
- David Godfrey, Director (retired), ABA Commission on Law and Aging, American Bar Association
- Meryl Gordon, Professor and Director, Magazine & Digital Storytelling Program, Arthur L. Carter Journalism Institute, New York University
- Petter Gottschalk, Professor Emeritus, Department of Leadership and Organizational Behavior, BI Norwegian Business School
- David Grann, Author
- Katrin Haldeman, Director, Marketing & Communications, Disability Rights New York
- Jeffrey E. Hall, Deputy Associate Director for Science, Office of Minority Health and Health Equity, Centers for Disease Control
- Amanda Hartocollis, National Reporter, The New York Times
- Thomas L. Hafemeister, Independent
- Dan Heath, Author
- Kay Taylor Hightower, Program Manager, Supportive Services and Outreach Unit and the ElderCare Trust Fund, South Carolina Department of Aging
- Andrew Hochstetler, Department of Sociology and Criminal Justice, Iowa State University
- Samantha Hogan, Reporter, The Maine Monitor
- Susan Ingles, Consumer Unit Head/Senior Staff, South Carolina Legal Services
- Brian Ishikawa, Senior Vice President & Director of Corporate Security, Bank of Hawai’i
- John M. Ivancevich, Hugh Roy and Lillie Cranz Cullen Chair in Management, Department of Management, College of Business Administration, University of Houston
- Shelly L Jackson, Assistant Professor; Institute of Law, Psychiatry and Public Policy; Department of Psychiatry and Neurobehavioral Sciences; University of Virginia
- Tim Jackson, APS Section Administrator Division of Senior and Disability Services, Missouri Department of Health & Senior Services
- Jason Karlawish, Professor of Medicine, Medical Ethics and Health Policy, and Neurology; Pennsylvania Perelman School of Medicine; University of Pennsylvania; Director, Penn Program for Precision Medicine for the Brain
- Sarah Khasawinah, Deputy Staff Director, Senator Mike Braun, Ranking Member, U.S. Senate Special Committee on Aging
- Lindsay Laferriere, Director, Partnership for Public Service
- Marian Liu, Assistant Professor, Purdue University’s School of Nursing;
- Elizabeth Loewy, Co-Founder and Chief Operating Officer, Eversafe
- Kamala Mallik-Kane, Senior Research Associate, Urban Institute
- Jay A. Mancini, Professor Emeritus of Human Development, Department of Human Development and Family Science, College of Liberal Arts and Human Sciences, Virginia Tech
- Andy Mao, Elder Justice Initiative, U.S. Department of Justice
- Art Mason, Director (ret.), Elder Abuse Prevention Program, Lifespan of Greater Rochester
- Britney J. Mason, Manager, GTM Strategy and Operations at LinkedIn
- David Miliband, President and CEO, International Rescue Committee, Chicago Council on Global Affairs
- Rachel E. Morgan, Unit Chief | Author, Bureau of Justice Statistics, U.S. Depertment of Justice
- Heather Mutchie, Post Doctoral Associate, Gerontology, Purdue University
- Lisa Nerenberg, (immediate past) Executive Director, California Elder Justice Coalition
- Brian K. Payne, Vice Provost for Academic Affairs, Academic Affairs, Old Dominion University
- Breon Peace, United States Attorney, Eastern District of New York; Chairperson, White Collar Fraud Subcommittee, Attorney General’s Advisory Committee (AGAC)
- Christina Policastro; U.C. Foundation Associate Professor of Criminal Justice; Department of Social, Cultural, and Justice Studies; University of Tennessee at Chattanooga
- Henry N. Pontell, Distinguished Professor, John Jay College of Criminal Justice, The City University of New York
- Karen A. Roberto, University Distinguished Professor, Department of Human Development and Family Science, Virginia Tech
- Michelle Sager, Managing Director, Strategic Issues, U.S. Government Accountability Office
- Lisa Weintraub Schifferle, Senior Policy Analyst, Office for Older Americans, Consumer Financial Protection Bureau
- Marshall R. Schmidt, Assistant Professor, Justice Studies Department, Montclair State University
- Julie Schoen, Director, Elder Abuse Guide for Law Enforcement (EAGLE) and Emeritus Consultant, National Center on Elder Abuse (ACL)
- Neal Shover, Professor of Sociology, Department of Sociology, The University of Tennessee, Knoxville
- Sally S. Simpson, Distinguished University Professor of Criminology and Criminal Justice and Director of the Center for the Study of Business Ethics, Regulation & Crime (C-BERC), University of Maryland, College Park
- Talmon Joseph Smith, Economics Reporter, Business Section, The New York Times
- Thomas J. Spulak, Chairman and President, The Claude Pepper Foundation; Partner, Government Advocacy and Public Policy, King & Spalding LLP
- William A. Stadler, Assistant Professor & Program Director, Criminal Justice, Saint Martin’s University
- Michael Ashley Stein, Visiting Professor of Law, Co-founder and Executive Director of the Harvard Law School Project on Disability
- Pamela Teaster, Professor, Associate Director for Research Center for Gerontology, Virginia Tech
- Amy Thomas, Director of Community Care Coordination, Elder Options
- Anna Thomas, Special Victims Forensic Specialist, Division of Aging Services, Georgia Department of Human Services
- Steve Tombs, Emeritus Professor, School of Social Sciences & Global Studies, Social Policy & Criminology, The Open University
- Edwin Walker, Deputy Assistant Secretary for Aging, Administration on Aging, Administration for Community Living, U.S. Department of Health & Human Services
- Stephanie Whittier-Eliason, Elder Rights Team Lead, U.S. Administration for Community Living, U.S. Department of Health & Human Services
- Christian Wickert, Lecturer, Sociology and Criminology, University of Applied Sciences for Police and Public Administration in North Rhine-Westphalia
- Keziel Wold, Associate Commissioner for Adult Protective Services, Texas Department of Family and Protective Services
- Erica F. Wood, Assistant Director (retired), ABA Commission on Law and Aging
END
