Elder Justice: A blueprint for an emerging coalition, scaled society-wide

philip c marshall
BeyondGuardianship
Published in
37 min readFeb 9, 2024

In this essay, I present a blueprint for the elder justice movement that lays out how concerned persons can stand up and make a difference, leading to a more passionate and engaged society, better protections for older adults, and systemic changes to put an end to abuse — state-sponsored guardianship abuse and exploitation, included.

Aftermath and catalyst

In 2006, when I first started advocating nationwide for elder justice, I supported guardianship as one means to safeguard certain adults.

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.

Eligon, John. Mrs. Astor’s Son Guilty of Taking Tens of Millions and Hartocollis, Amanda and John Eligon. Looking Beyond the Glamour, Astor Jury Found a Moral Flaw New York Times, October 8, 2009.

Guardianship can help incapacitated persons stay home — in place and with grace — especially 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 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 and having 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...”

“Are you my only child?” — Letter to Dr. Howard Fillit from Anthony Marshall on “more detailed information regarding my mother’s health” at the request of Dr. Fillit. December 26, 2000. The letter was entered as evidence in criminal court.

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 Mary Joy Quinn, Immediate Past President. Annette de la Renta, my grandmother’s devoted guardian and one of her closest friends, shared in the award.

Judge Isabella Horton Grant. Image: Sarah Anderson for the National College of Probate Judges • Judge Isabella Horton Grant Guardianship Award, “The Isabella Award,” National College of Probate Judges (NCPJ) presented by Mary Joy Quinn, Immediate Past President, NCPJ, to Philip Marshall in Tucson, Arizona, May 4, 2012.

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 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. This epidemic is a threat to our society, our justice system, and our future selves.

The U.S. Department of Justice’s 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.”

Plenary, permanent guardianship is frequently unnecessary and frequently imposed. Lisa Nerenberg notes, “Guardianship is a blunt force instrument that is often applied when surgical approaches are better suited to cognitively impaired elders’ needs” (April 23, 2021).

Even in the absence of abuse or exploitation, guardianship strips citizens of their 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 that addressing it will be a daunting task. Each state must make an effort equal to the tremendous trauma and cost abuse and exploitation have imposed on our most vulnerable adult citizens, their families, and taxpayers.

Erica F. Wood concluded, “Guardianship can be a godsend or a gulag, a help or a hindrance” (2012, page 79). 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. Reforming and then abolishing guardianship is a leverage point toward systems change for elder justice, and a better future for ourselves, individually and societally.

“If you would hit the mark, you must aim a little above it; Every arrow that flies feels the attraction of earth.” —Henry Wadsworth Longfellow, In the Harbor, Elegiac Verse, XI (1882). Sunrise from Cathedral Valley campground across Capitol Reef National Park to the Henry Mountains, Utah. July 20, 2023.

Aim high

Elder justice is a relatively new field. 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, has informed backward-looking prosecution rather than forward-looking prevention.

An elder justice focus on prevention empowers us to live our best lives. It strengthens our social fabric by challenging ageist norms, promoting positive behaviors, and safeguarding humanitarian and constitutional rights.

Below, I explore experts’ research and framing of abuse and exploitation with an added focus on guardianship. This research functions like an upper-level stress test, assessing our country’s strengths and weaknesses to make society stronger.

This stress test is a real-life exercise that evaluates the stability of our society — the underlying norms, values, and institutions that hold us together. Will they hold up under force? Or break under the pressure?

Laura Mosqueda and Lisa Nerenberg separately indicate that guardianship abuse and exploitation may be most salient and severe when viewed in the context of threats to individual rights through abuse of power in a relationship of trust.

When introducing the Abuse Intervention Model (AIM), Laura Mosqueda and colleagues (2016, 1879) explain,

“Although many theories have been proposed, adapted and applied to understand elder mistreatment, there has not been a simple, coherent framework of known risk factors of the victim, perpetrator, and environment that applies to all types of abuse.”

AIM is intended “to identify risk factors for elder mistreatment for individual cases and enable a plan to be developed to prevent or mitigate elder mistreatment.”

Abuse Intervention Model — S. Duke Han and Laura Mosqueda, Elder Abuse in the COVID-19 Era. 20 April 2020, figure 1.

Mosqueda notes “interpersonal, sociocultural, and multisystem theories as the predominant theories explaining elder mistreatment,” (page 1879). These theories inform AIM, whose model includes modifiable risk factors of elder mistreatment (read: abuse) in the context of three domains:

  1. Vulnerable Older Adult — (impaired physical function, impaired cognition, emotional distress and/or mental illness)
  2. Trusted Other — (dependency, emotional distress and/or mental illness, impaired physical function)
  3. Context — (low-quality relationship, social isolation, cultural norms)

As elaborated by Mosqueda (page 1880),

“The term ‘trusted other’ includes a variety of people, including family members, neighbors, friends, paid caregivers, other household employees, financial advisors, and other advisors.”

Mosqueda’s trusted other domain overlooks a crucial group: guardians and other actors within state court systems. As guardianship manifests society’s greatest responsibility held in trust (Luhmann, 2017), it is essential to include these state-sponsored actors in the “trusted other” domain. Moreover, the very factors Mosqueda highlights for the other two domains — vulnerable older adult and context (especially through isolation) — are often acutely exacerbated within guardianship cases. Therefore, integrating guardians and other state actors into the AIM model strengthens its overall comprehensiveness and applicability to the complex realities of elder abuse in guardianship situations.

Nerenberg, Lisa. 2019. Elder Justice, Ageism, and Elder Abuse. Springer.

Reduce or eliminate risk factors

Lisa Nerenberg’s “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 affirms Adewale Troutman’s mantra that, “health justice is social justice.”

Nerenberg conducts a comprehensive examination of the state of our nation (with global references). She leads with justice and makes recommendations for reform, based on a new model.

Summarized in an American Bar Association Bifocal article, Nerenberg builds and test drives:

[an] elder justice model, which is a template for how elder justice translates into interventions, programs, and public policy (2021, 54). The model itself draws from two constructs both of which are used in public health: the ecological model and the hierarchy of prevention…The public health hierarchy describes approaches to preventing threats…”

Most harms inflicted on older persons are not one-off acute incidencts. The harsh reality is that most elder abuse is chronic, as evidenced by the forms, frequency, escalation, and duration of abuse delivered and then endured by so many persons — my grandmother included. Victims are prone to re-victimization.

Nerenberg’s hierarchy 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 of abuse.

Real impact demands shifting our focus from damage control to upstream interventions that tackle root causes and prevent abuse from occurring in the first place. Teaster and Hall, whose work will be introduced more formally below, 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).”

Nerenberg (55) elaborates, “Applying these constructs to elder justice, threats can be addressed at four levels [bullets and italics added, below], spanning from self to society:

  • The first level addresses threats to individual rights;
  • [The second level considers] threats at the interpersonal level [with a focus on] abuses of power against older adults;
  • Third level threats include disparities in access to community resources and opportunities; and
  • [Fourth level] threats at the societal level include ageism in public policy and opinion.”

In cases of adult guardianship abuse, all four levels of threats are clear and severe.

Guardianship — framed in the context of a person-subject-to-guardianship and court-appointed-guardian dyad — is a flawed social construct with anti-social characteristics, similar to some of the archaic frameworks that still address elder abuse in the context of the elder-abuser dyad.

Nerenberg notes, “social support is now believed to be the strongest protective factor” in preventing abuse (55). In guardianship abuse, social support is denied or highly compromised due to legally sanctioned threats to individual rights, abuses of power, disparities in access to community resources and opportunities, and ageism.

Guardianship deprives society and citizens of an inclusive, socio-ecological approach to protecting older adults that embraces our social networks of support and, when necessary, facilitates research-informed means of supported independence, including supported decision-making (Administration for Community Living).

Returning to Nerenberg’s hierarchy, secondary risk reduction and tertiary mitigation are all but impossible in guardianship, given the lack of rights and heightened potential for abuse. As a social harm and anti-social construct, guardianship is a risk factor against our social compact. While modifiable, reducing the risks imposed by guardianship has met with failure for over two generations, since before Representative Claude Pepper’s 1987 congressional hearing on guardianship subtitled “A National Disgrace.”

Nerenberg’s most proactive level is the primary level — to reduce or eliminate risk factors. It’s by far the most forward-looking and also the 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 safeguard society and our future selves — now.

David Godfrey (2022, 96), Director of the American Bar Association Commission on Law and Aging, notes:

“I get asked, why put effort into fixing guardianship? Why not focus on replacing it?… The short answer is, we can’t abandon the at least 1.3 million people who are already in the guardianship system. We need to fix the system while trying to replace it, and major parts of that change must come from inside the Courts.”

With reference to the “1.3 million” citizens subject to guardianship, 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.” (97). This harsh reality suggests courts cannot be trusted to achieve change alone — or to serve and save our most vulnerable citizens today.

Guardianship must be abolished.

In the meantime, to reduce the risk inherent in guardianship, legislators must enact laws to appoint and authorize trusted, capable, and vigilant third parties to oversee guardianships. Concurrently, self-appointed third parties, including federal agencies, must pursue their own investigations and subsequent steps in response to criminal activity. This two-pronged approach will help ensure guardianships are carried out in the best interests of the citizens they serve and that any potential abuse is identified and addressed quickly and forcefully.

In the United States, each state is in the “business” of guardianship. To date, states have regulated their own “business” with dire and deadly consequences — when abuse happens, “the outcomes can be tragic, sometimes fatal.” (Godfrey 2022, 96). In some states and counties, wolves are watching the sheep. Trusted, capable, empowered, and funded third-party protectors are crucial.

Conflicts of interest and lack of transparency embedded in state courts stifle their ability to self-regulate responsibly — as demonstrated by decades of documented abuse and exploitation.

Chronic challenges in guardianship oversight necessitate a bold shift. Capable, empowered, and well-funded third-party protectors represent the most viable and adaptable solution, paving the way for responsive regulation that actually safeguards vulnerable individuals.

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.”

Image: Senator Anthony H. Palumbo; Teresa Kay-Aba Kennedy, Ph.D., (niece of Dr. Lillie White), Founder, Elder Dignity; Libra Max (daughter of artist Peter Max), Founder, #FreePeterMax; Philip C. Marshall, Founder, Beyond Brooke; and Senator George M. Borello. New York State Senate Guardianship Round Table Public Hearing, New York City; August 25, 2022. Photograph: Collection of Libra Max.

Liberty, lifelong

I have testified before state and congressional hearings. But, until last year, I had never participated in a hearing in which all the witnesses were concerned persons who suffered harm resulting from abuse inflicted on their loved ones.

On August 25, 2022, Senator George M. Borrello and Senator Anthony H. Palumbo convened the New York State Senate Guardianship Round Table Public Hearing in New York City. The hearing was scheduled from 1:00 p.m. to 2:00 pm to include introductions by the senators, four-minute statements from a dozen witnesses, and a question-and-answer session led by the senators. All witnesses had been victimized by state-sponsored guardianship abuse and exploitation, except me.

The hearing concluded at 4:30 pm. It was extended and guided by the concern and sensitivity of senators and staffers to their witnesses and the ordeals they chronicled, at times in tears. Witnesses’ visceral, vicarious, and heartfelt oral testimony was archived on the New York State Senate Republicans Facebook page (August 25, 2022).

After hearing these stirring accounts, I have never felt so compelled to action on behalf of those victimized by elder abuse and exploitation. I hope you do, too.

That day, there was acknowledgement that the senators’ witnesses:

  • Endure primary personal harm as collateral damage in a war for loved ones and against state courts;
  • Suffer social harm inherent in guardianship abuse and exploitation as a white-collar crime, and;
  • Are re-victimized by the social harm of guardianship abuse and exploitation — as states and citizens countrywide turn a blind eye to their determined fight to save other citizens from a similar plight.

The senators’ witnesses served as credible messengers and wounded healers, signaling how urgent needs can be met with opportunity and urgency in the present. They demonstrated how silence protects perpetrators not victims. They illustrated how victims are re-victimized by perpetrators and by society’s lack of responsibility and response.

Toward gaining mid-traumatic and post-traumatic growth (Richard G. Tedeschi and Lawrence G. Calhoun 2004), the senators’ witnesses campaign to change or abolish state guardianship systems so other citizens do not have to go through the same ordeal. Concerned persons understand that “strategies must focus on both ‘bad apples’ and ‘corrupting barrels’” (Winsor Schmidt and colleagues, 2022, 52–53).

Statue of Liberty, from Brooklyn.

My campaign, Beyond Guardianship, was launched that August day. I vowed to help champion this greatest cause, buttressed by fellow witnesses’ advocacy and senators’ concern and capacity. After the hearing, I headed across to Brooklyn looking south to the Statue of Liberty, her torch raised to an evening glow. I thought, may all citizens countrywide be able to maintain their personal liberty, lifelong — and not be “deprived of life, liberty or property without due process of law” (Fifth Amendment).

Witness Marian Kornicki, founder of G.A.I.N. (Guardianship. Abolish. Intervention. Now.), testified how guardianship destroyed her family (January 10, 2022). Marian also reported on the hearing. She shared several stories—the plight and fight of Sherry Moses and Nadia Antrobus—and recounted the hearing’s origin (September 12, 2022):

“The senators first became aware of this issue because of the Free Peter Max movement Libra started on behalf of her father Peter, the famous artist and long-time New York City resident. Last month, she filed a lawsuit against the New York City courts, alleging systemic due-process violations in the city’s guardianship system. [Max v. Kaplan, July 20, 2022] In the suit, she describes how her father is being mistreated by his guardians, who she says are also preventing her from seeing him and monitoring her with surveillance cameras during her limited visits with him.”

Witnesses Teresa Kay-Aba Kennedy and many more concerned persons said they found out their loved ones have died long after burial or cremation. These deaths may have been due to neglect, lack of medical care, and trauma inflicted as their assets and lives were plundered.

Teresa, founder of Elder Dignity, submitted written testimony to the senators for the record. Teresa introduced her aunt and family’s saga with:

“Imagine you’ve worked hard all of your life and suddenly you are deemed incapacitated and stripped of your dignity and basic individual rights. You have done nothing wrong but someone you did not choose is given control over your person and property making you a modern-day slave. You may even be taken from your home and hidden away from loved ones while your assets are pillaged. It sounds like Nazi Germany, but this is happening in the United States today. It happened to my aunt, Dr. Lillie Sykes White [ABS Action News Tampa Bay; January 22, 2012].”

Libra Max and many more concerned persons continue to struggle for years to free a family member or friend, fighting for justice and the rescue of their loved ones.

Libra founded #FreePeterMax. In Libra’s case, “guardianship has cost her father millions,” reported Adam Walser of ABC Action News (November 10, 2021). In 2022, the article “Peter Max saga continues, as his daughter struggles to gain guardianship of the dementia-stricken Pop artist” appeared in The Art Newspaper (June 16, 2022). And, as chronicled by Kornicki, Bloomberg News reported, “…artist Peter Max’s daughter, Libra Max, has filed [in the U.S. District Court for the Southern District of New York] a lawsuit [Max v. Kaplan]…alleging systemic due process violations in [New York City’s] guardianship courts.”

The senators’ witnesses expressed:

  • Their love, which remains greater than their plight.
  • How the guardianship system has compromised their ability to fight — to fight for loved ones, to fight against state-sanctioned abuse and exploitation, to fight against injustice nationwide, and to fight against ignorance and ambivalence.
  • How politicians can amplify their voices in the chambers and halls of state capitols nationwide.

In Political Emotions: Why Love Matters for Justice, Martha C. Nussbaum observes,

The type of imaginative engagement society needs…is nourished by love. Love, then, matters for justice…” (2013, 280)

Pamela B. Teaster and Jeffrey E. Hall, editors (2018) Elder Abuse and the Public’s Health. Springer Publishing Company.

Take our future selves personally, now

Public health is different from the healthcare industry. As explained by the American Public Health Association:

“The health care industry treats people who are sick, while public health aims to prevent people from getting sick or injured in the first place. Public health also focuses on entire populations, while health care focuses on individual patients.”

In Elder Abuse and the Public’s Health, editors Pamela B. Teaster and Jeffrey E. Hall (and contributing colleagues), turn attention to themselves as they recognize elder abuse is a public health problem, given the “burden of EA [elder abuse], its societal costs, and the whole of its consequences for public health.” (2018, 1)

Addressing abuse professionally, elder abuse is public health’s problem. The contributors provide a clarion call to all sector experts. They recognize that elder abuse “is a constellation of problematic behaviors that the field of public health must own, contend with, and help eliminate for practical, ethical, and moral reasons” (1–2) given the “…potential facilitative role that this sector may play in advancing work to measure, monitor, and address [elder abuse] more systematically and robustly at a population level.” (16)

Addressing abuse personally, elder abuse is framed as the public’s health problem. This signals a call to action to all society as elder abuse is “a threat that should not be ignored, dismissed, or left for someone else to handle.” (1)

Rachel Pruchno’s editorial, as editor-in-chief, introducing the Special Issue, “Aging: It’s Personal,” The Gerontologist, Volume 57, Issue 1, 1 February 2017, Gerontological Society of America.

Empowered and emboldened by ownership and obligation, the experience and foresight of professionals who take aging personally help us engage all of society — even fueling a popular movement. Editor-in-chief of The Gerontologist, Rachel Pruchno, introduced a special issue in her editorial (2017, 1):

“This Special Issue, ‘Aging: It’s Personal,’ is different from anything The Gerontologist has ever published. Gerontologists, like everyone else, experience the positive and negative transitions of aging. Yet often we study issues such as family caregiving, retirement, and illness long before we experience them. Other times, the experiences we have direct our careers. This Special Issue examines how our academic knowledge influences the way we understand our own aging experiences and those of our loved ones and how, in turn, our personal experiences can help identify gaps in gerontological research, theory, and practice.

The authors attended to several aging issues, with family caregiving the focus of almost half of the 19 articles. Some papers addressed the systemic social harm of how “macrostructural forces and formal health and care systems affect caregiver burden” (1). Spurred by Pruchno’s issue, I hope that The Gerontologist will consider publishing future special issues that focus on elder abuse — including guardianship abuse. Such special issues might be conducted in concert with Gerontological Society of America’s Abuse, Neglect, and Exploitation of Older Persons Interest Group.

Pruchno’s special issue of The Gerontologist takes a hybrid vigor-with-translational-rigor approach by combining professional and personal experiences to research, practice, and life. In a summary titled lessons learned, Pruchno reflects, “Although science tells us about average experiences, these reflections show that real life is sometimes much more complex and much messier.” (4)

The messy complexity of reality underscores the profound contrast between absolute and relative perspectives on aging, the interconnectedness of our collective life experiences (professional and personal), intersectional inequities, societal norms, and existential questions surrounding our human condition.

Professionally, a grounded understanding of our shared life breaks down barriers between disciplines, enabling and empowering experts to collaborate more effectively to combat social harm. Personally, the illumination of our shared lives provides a glimpse and glimmer of a promise of justice that extends to and through all of us, as concerned persons.

The “ball-and-claw” foot of Newport’s Colonial-period furniture stands out as one of America’s finest features and is an example of our 18th-century achievements. It is strange the term ball-and-claw favors, first, the object of veneration, protection, and care — the ‘ball’ — over agency, as expressed by the eagle’s ‘claw.’ It helps to be agency based, over objectifying our achievements or ourselves. Detail, card table, ca. 1765. John Townsend (1732–1809), Newport, RI. L2012.3 Loan courtesy of the Ott Family. Newport Restoration Foundation. • Aerial view of Easton’s Point, Newport Harbor from Easton’s Point, Living in Nature, The Cultural Landscape Foundation.

Like America’s eagle’s talons, Teaster and Hall’s possessives — public health’s and public’s health — entail an attributive relationship; these possessives gain a purchase on our personal and professional roles and responsibilities; they indicate an ownership that entails obligation and opportunity.

Hall and Teaster (2018, 15) describe elder abuse,

“in three distinct, yet interrelated contexts of perception, interpretation, and action. In each context, a unique argument is made for acknowledgment, acceptance, and ownership of this problem. In reality, [elder abuse] encompasses all three aspects.” (2018, 15)

In framing elder abuse as public health’s problem, Hall and Teaster call on public health practitioners to act, more, in an arena occupied by experts who have worked tirelessly to address and arrest elder abuse for decades.

Joan Harbison and colleagues. 2012. Understanding “Elder Abuse and Neglect”: A Critique of Assumptions Underpinning Responses to the Mistreatment and Neglect of Older People. Journal of Elder Abuse & Neglect, Volume 24, 2012 — Issue 2: Elder Abuse in Canada — Reports From a National Roundtable Discussion

“From its beginnings as a social problem, ‘elder abuse and neglect’ was shaped as a problem that required professional expertise,” note Joan Harbison and colleagues (2012, 91) when citing the observations of Leroux and Petrunik (1990, p. 653) who observe, “…concern over elder abuse thus far…derives more from professional interest group advocacy than from widespread societal reaction or even a popular movement.”

Since the 60s, confronting elder abuse has been “largely considered the responsibility of social services, aging, or law enforcement agencies…which were recognized as having legitimate authority” note Shalon M. Irving and Jeffrey E. Hall (2018, 20). Other experts include Harbison’s gerontologists, who “supply leadership in the construction of a problem, its theory of explanation and its policies to alleviate the problem” (Harbison, 91). Added, too, are professionals specific to our wealth and health — our “wealthcare” (Jason Karlawish) — experts in financial services sectors and in health care and public health. Our professional circles of support expand to embrace and embolden elder justice.

Still, most of society sits on the sidelines, indifferent. Teaster and Hall conclude that elder abuse, “only occasionally becomes concrete, real, and fully present in the eyes of the public…” (2018, 7). This lack of presence, this indifference, is an intentional and instrumental means to mask our mortality and compromise our mores and morality. This compromise is compounded by ageism.

Simon Pemberton observes, “…the greatest level of harms that are probably caused in our society are caused by indifference” in an interview with Lucy Vernall about social harm and the structure of societies (February 8, 2012).

A veil of indifference works two ways: looking inward, it conceals complacency; looking outward, it obscures a fuller understanding of our human condition and potential. Humanity’s fear of mortality is manifested in our terror management (Ernest Becker Foundation) — as described in theory developed and tested by Jeff Greenberg, Tom Pyszczynski, and Sheldon Solomon.

This poses a paradox: on one hand, elder abuse “only occasionally becomes concrete, real, and fully present in the eyes of the public”; on the other hand (as detailed below), over one in six adults have helped a person suffering from elder abuse and “an estimated overall prevalence of elder abuse of approximately 10% appears reasonable” (Lachs and Pillemer; 2015, 1949). Society-wide, the salience and severity of abuse is shrouded by stigma, shame, social norms, and indifference.

The targets of elder abuse and financial exploitation as a systemic social harm.

Share your concern

Elder-justice experts are not indifferent, nor are they alone. Isolated, coping, and hoping, too, are concerned persons in informal social networks — non-abusing family, friends, and neighbors who desperately struggle to help loved ones from abuse.

Risa Beckman and colleagues learned about concerned persons in informal networks who step up for elder abuse victims through the Cornell University Survey Research Institute omnibus survey, which assessed this population for the first time in 2016. Survey results revealed that when findings were extended to the general population approximately 44 million adult Americans had become involved in helping an elder abuse victim.

Helping — Graphic design by Nancy Oatts, a neighbor of an elder abuse victim she assisted, as chronicled in My Neighbor Miss D and It Became Love: One Advocate’s Journey into the Elder Justice World (2016). Nancy serves on the helpline’s advisory board. Source: When Helping Hurts (Risa Breckman and Philip Marshall, 2017), which chronicles NYCEAC’s findings: “We do know from conversations with concerned persons that the path to assisting elder abuse victims is often fraught with challenges. Concerned persons may witness the decline in the victim’s health and seek to obtain medical care, or provide what care they can themselves. They might feverishly focus efforts on trying to stop a financial exploiter from completely emptying bank accounts. They may try to lessen the victim’s despair. Often, they are often the only ones standing between the victim and the abuser, preventing the victim from slipping into total isolation.

As principled actors concerned persons draw the line. It becomes a battle line. Concerned persons position themselves as human shields to protect older adults. At times, concerned persons are collateral damage (Melba A. Hernandez-Tejada; July 17, 2019) in long-running fights over an older person’s well-being. The line can also become a slackline on which concerned persons balance all of life’s responsibilities while navigating dangerous, uncharted territory; sometimes, they hang on by a thread. They cannot weave a secure safety net for seniors, self, and society alone. Our secure safety net must be woven by all citizens.

The NYC Elder Abuse Center—NYCEAC, now the Center for Elder Abuse Solutions (CEASe),

“was launched in 2009 to improve the way professionals, organizations and systems respond to elder abuse, neglect and financial exploitation. It accomplishes this through an unprecedented level of collaboration and coordination…”

In 2017, Risa Breckman and colleagues at NYCEAC started a city-focused pilot project, the Elder Abuse Helpline for Concerned Persons. A permanent program was established the next year. Since then, the helpline has expanded statewide to include the Upstate Elder Abuse Center at Lifespan [of Rochester]. The pilot was funded in part by the Fan Fox & Leslie R. Samuels Foundation. The helpline is funded by the New York State Office of Victim Services (Grants Unit) through its administration of federal Victim of Crimes Act (VOCA) Funds. I serve on the helpline’s advisory board.

“You’re their lifeline. We’re you Helpline” — The Elder Abuse Helpline for Concerned Persons provides non-emergency information and support for concerned persons trying to help an elder New York State resident. Call 844.746.6905 (Monday-Friday, 9am-5pm Eastern). Center for Elder Abuse Solutions (neé the New York City Elder Abuse Center), Weill Cornell Medicine. Graphic design by Nancy Oatts.

The Helpline is now part of the Weill Cornell Medicine Center for Elder Abuse Solutions (CEASe), neé the New York City Elder Abuse Center. As described by CEASe, the helpline is:

“…a NON-EMERGENCY service providing information and support… The Helpline gives callers access to a trained service specialist [who] is backed by a culturally competent, compassionate, and caring team of professionals with many years of experience in the elder justice field.”

Confidence helps concerned persons who reach out, having experienced the betrayal of trust inflicted on a vulnerable adult. Concerned persons trust experts’ ethics, as they confide in you — knowing you trust them. Concerned persons trust experts’ agency, as they have confidence that you can help them and not question their altruistic motives.

The success of the CEASe helpline, showcased through its effective practices and ongoing assessment, serves as a powerful catalyst to improve support for concerned persons nationwide. My experience in 2006, absent such support, underscores the crucial need for resources like CEASe’s helpline. Most concerned persons still face similar struggles without access to a single source of professional help. Without a helpline to call, personally I wasn’t sure where to start when I embarked on my effort to help my grandmother.

Our concern is two-fold. We are concerned: worried, anxious, even traumatized, and it’s our concern, our ownership, and our obligation to act. When we act, we realize that our moral responsibility must be matched by and mesh with society’s ethical ‘response-ability’ — society’s ability to respond with its concern matched by capacity. Otherwise, we feel helpless and hopeless, as do those we strive to help.

In Skin in the Game: Hidden Asymmetries in Daily Life, Nassim Nicholas Taleb states succinctly, “The entire point of the book is that in the real world it is hard to disentangle ethics on one hand from knowledge and competence on the other” (2018). With a focus on elder justice, Karen A. Roberto and colleagues note, “community capacity is defined as having two elements, sense of shared responsibility and collective competence” (2015, 22).

Concerned persons “are often the only ones standing between the victim and the abuser, preventing the victim from slipping into total isolation,” note Breckman and Marshall (2017). Experts may also be isolated in seemingly disparate disciplines when deprived of a network to share knowledge and know-how.

Roberto explains (2015, 20):

“Our community capacity model includes and expands upon the successes of multidisciplinary professional teams by distributing knowledge about, and responsibility for, elder abuse prevention and intervention not only across professional boundaries — but within and between neighborhood, familial, and individual boundaries as well — to more comprehensively reinforce the safety net for elder abuse victims.”

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.”

Concerned persons craft circles of support. Dorset, Vermont. July 1, 2018. As a pebble cast in to waters, concerned persons mirror The Expanding Circle (2011), a classic study in which Peter Singer “argues that altruism began as a genetically based drive to protect one’s kin and community members but has developed into a consciously chosen ethic with an expanding circle of moral concern.”

CEASe assumes an adept ambidextrous approach to networks through:

David Burnes and colleagues view the helpline experience from experts’ perspectives in a paper titled, Informal Network Supporters Make a Difference in Facilitating Use of Formal Support Services (2018, 146). The authors conclude:

“The hidden nature of elder abuse remains a major challenge in the field. Few elder abuse victims ever seek or receive assistance from formal support services (e.g., adult protective services, law enforcement) designed to ameliorate the effects of abuse and prevent re-victimization… Elder abuse victims who had a concerned person in their personal network were significantly more likely to use formal elder abuse support services than victims without a concerned person.

In a crucible of shared solicitude, such relationships forged among formal and informal concerned persons are transformational, not only transactional. The NYCEAC/CEASe sets an example: the center’s conscious coupling of what is transformational and transactional serves to amplify our collective concern and capacity to serve as catalysts for positive change society-wide.

Image: Spirit gate, added over the Nam Khan River as it meets the Mekong River, Luang Prabang, Laos. March 2023.

Our safety net works when we have safety networks — formal, and informal, and in unison

One glimmer of hope for our future is the growing number of people who, through hard-lived experience, have emerged as credible messengers around the issue of elder justice, compelled to change a system that puts our most vulnerable citizens at great risk of abuse. A turnkey is key to engaging society. Concerned persons provide society that turnkey. In concert, they create a new normal to draw greater society in and they signal a collective change of expectations whose achievement is expressed by Cristina Bicchieri in Norms in the Wild (2017, 111):

“Norm creation and norm abandonment thus share common features: people must face a collective action problem, they must have shared reasons to change, their social expectations must collectively change, and their actions have to be coordinated. There are, however, important differences between norm creation and norm abandonment. To create a social norm, normative expectations must be created first, and empirical expectations will follow. To abandon a social norm instead, empirical expectations have to change first, and change in normative expectations will follow.”

Experts’ insights prove invaluable. Informed by Bicchieri’s diagnosis, measurement, and definition of “norms in the wild,” Pruchno’s messy complexity of shared experiences help couple Harbison’s experts and their “concern over elder abuse” with Breckman’s “concerned persons” in informal social networks. Both are emboldened and empowered by Roberto’s “sense of shared responsibility and collective competence.” Teaster and Hall’s public health experts help scale a unified response to elder abuse to “a population level” buttressed by Nerenberg’s public health “approaches to preventing threats.”

Through networked action, institutional change, normative shift, and unwavering accountability, as concerned persons we can scale elder justice society-wide to embrace our shared ownership, obligation, and opportunity.

2018 Centralina Aging Conference, Centralina Area Agency on Aging. Friendship Missionary Baptist Church, Charlotte, NC. Keynote: The Brooke Astor Story: Hard-learned lessons that address elder abuse and financial exploitation. Philip C. Marshall; October 25, 2018. Photograph credit: Alice Carroll.

I feel 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. 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.

With a rising tide countrywide, concerned citizens are advancing awareness and action with inter-action, harnessing Roberto’s “actions of formal and informal networks to improve response to [elder abuse]” (2013, 23). By taking proactive steps to prevent abuse, concerned citizens as “pre-sponders” strengthen protective environments for older adults and persons in their circles of support. Contextual support flourishes in networks nationwide for both concerned persons and persons of concern: here, older adults who are subject to harm.

Standing in stark contrast, the realm of guardianship will remain resistant to similar advancements. The very premise of guardianship, rooted in presumptions of incapacity rather than potential, undermines the foundation of the strengths-based future we wish to build together through trust.

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.

Guardianship can also 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 environment, guardianship may be employed strategically as a weapon and a shield, allowing bad actors to steal citizens’ net worth, self worth, and lives. Once imposed, the near-irrevocable nature of permanent and plenary guardianship leaves persons under its authority and their advocates perpetually fighting a losing battle against a system that was created to safeguard citizens, but in practice has protected a shockingly high number of bad actors, who commit criminal acts with little fear of being held accountable. 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 by reducing or eliminating the risk factors inherent to guardianship.

In their deeply personal narratives, the New York State senators’ witnesses starkly revealed states’ lack of responsibility and response to the injustice of guardianship. The hearing amplified witnesses’ voices. Yet countless similar pleas across the nation remain unheard as society turns a deaf ear to cries for help.

Compelling personal narratives delivered by the New York State senator’s witnesses starkly illuminated the human cost of guardianship injustices. Their testimony underscored the urgent need for a comprehensive reevaluation of guardianship, particularly its effectiveness at preventing and addressing abuse through the courts. Witness accounts revealed systemic patterns of neglect and inadequate responses, raising concerns about potential violations of fundamental rights and prompting calls for swift reform. However, until effective reform is implemented, individuals under guardianship, their immediate support networks, and our future selves will remain at risk, bearing the brunt of the current system’s shortcomings.

As “guardianship manifests society’s greatest responsibility held in trust” (Luhmann 2017), the inclusion of court-appointed guardians in Mosqueda’s Abuse Intervention Model’s “trusted other” domain will help address the betrayal of trust in guardianship as a white-collar crime that “has the capacity to undermine the trust in the entire sociopolitical system,” observes Sally S. Simpson (2013).

What the New York senators learned is reminiscent of the findings of Congressman Pepper’s 1987 congressional hearing on guardianship. As reported by the Los Angeles Times (September 25, 1987),

“Rep. Claude Pepper, 87, chairman of the House Select Committee on Aging’s health subcommittee, opened a hearing today on problems in guardianship procedures with a litany of state inadequacies — including the fact that advanced age is a cause for guardianship in 33 states. ‘I wonder if they’ll get me,’ Pepper said. ‘I’m 87. I have to be on the alert.’

Functional federalism: Our great united states, all-stars of different stripes. Columbus Fountain, Union Station, Washington, DC. Lorado Taft, sculptor. 1912. June 19, 2019; modified.

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 advancing guardianship reform and replacement, other states are not safe for retirees to live and die in.

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. In the spirit of functional federalism, national networks can help coordinate individual initiatives by states—all compelled by concerned persons.

Upstandership[SM]

Concerned persons practice what I call Upstandership, which is:

  • An ethic and practice of standing up to social injustice, chronic and acute;
  • Embodied by our social compact (redefined) between society and ourselves, in equal measure;
  • Not a single act but a process of shaping our individual (personal and professional) capacity to act and our community capacity to respond;
  • Cradled in trust, realized through our responsibility and relationships.

Upstandership includes eight steps (in bold), each expressed on its own terms and in relation to others.

  1. Our hero’s journey…
  • As concerned persons, we are brought to attention by persons suffering from harm.
  • Awareness fosters concern over the safety of persons in harm’s way and contextual supportive and risk factors.
  • Through knowledge, we recognize alleged or actual injustice, victims and their needs, others in victims’ circles of support, and community capacity.

2. A trauma-informed response…

  • In knowledge we recognize our personal and/or professional responsibility to act. We know that to be complacent about justice is to be complicit in abuse. We know that our silence protects perpetrators, not victims.
  • This compels us to action, achieved through agency and realized when we report, refer, or intervene with safety considerations in mind.
  • To achieve agency, our individual responsibility must be articulated with a societal collective “response-ability,” society’s ability to respond. Action through inter-action is achieved by coordinated community response guided by policy and protocol, community connections, supportive services, education and training, and legislative acts that permit or mandate us to act.
  • Justice is achieved through a survivor-centered response to address the safety of victims (primary and secondary), trauma-informed care, offender accountability, restitution, and resiliency through justice — including parallel justice (Susan Herman 2011) and transformative justice (Howard Zehr 2011).

3. As credible messengers…

  • Credible messengers, primary victims and concerned persons in formal and informal social networks, raise concern and capacity society-wide through advocacy, which demands and commands citizens’ attention, allowing victims to come full circle and become whole again.
Concerned persons practicing Upstandership, while coping with guardianship.

To repeat: In practicing Upstandership, we need to know society has our back when we act. Otherwise, we feel helpless and hopeless, as do those we seek to help.

As concerned persons trying to help a person subject to guardianship, we are brought to attention when the social harm of guardianship is inflicted on individuals through lack of due process, representation, and other constitutional rights. Harm is amplified by abuse and exploitation inherent in this environment.

When we realize that a state system intended to protect older adults frequently protects bad actors, our awareness of the guardianship comes as a severe shock.

Knowledge of such injustice is compounded when we experience the difficulty of helping or even reaching out to a loved one as we and others in a victim’s circle of support are “legally” isolated and neutralized in much the same way a person under guardianship is. Such circumstances curtail community capacity.

Despite the odds, in knowledge we acknowledge our personal and/or professional responsibility to act. We know that to be complacent about justice is to be complicit in abuse. We know that our silence protects perpetrators, not victims. We know we are being silenced.

Still, faced with this injustice, we can’t stay silent. So we draw on whatever agency remains, even if its action potential is compromised or denied in our limitation to report, refer, or intervene — all acts that diminish the safety of concerned persons and those subject to guardianship abuse.

Our individual responsibility is not met with a societal “response-ability.” There is seldom a coordinated community response guided by policy and protocol, community connections, supportive services, and legislative acts that permit or mandate us to act. At least not yet.

Justice is compromised or denied — as is the safety of victims (primary and secondary), trauma-informed care, and offender accountability aimed at system change.

As concerned persons, we’ve borne witness to egregious abuses of power within the very system meant to uphold justice. We refuse to be silent victims.

For concerned persons, the heart of practicing Upstandership is our “standing.” Yet, in guardianship we and most of society have no standing. These flagrant infringements compel us to fight for reform and expose the systemic flaws that breed such injustice. Our ordeal serves as a stark reminder of the need to safeguard the integrity of the justice system for all.

Through hard-learned experience, we serve as credible messengers as we aim to enrage and engage society through advocacy to demand and command citizens’ attention. Yet, despite decades of efforts against guardianship, we and society have not come full circle and become whole.

In the words of Rosaria Shaver (pers. comm. January 5, 2024)

“Guardianships can destroy lives… Over the last few years, I have felt angry, powerless, shattered, and disappointed, and I am heartbroken for my mom. She is 92 and I will seek the truth for my mom in her final years and a recognition of the abuse that has been done to her by her son and a court that was willing to take away her rights and dignity based on shallow evidence and calculated manipulation. I will not go away!”

This series on guardianship abuse and exploitation is kindled and sparked by the saga and determination of concerned citizens countrywide — especially concerned persons who are traumatized by their personal experiences as they desperately attempt to save loved ones from state guardianship, a system set up as a social safety net that instead turned into a criminal network.

Elder justice has come of age

By 2030, the U.S. will have over 70 million shades of gray — each with their own hue, value, and chroma to color our world far beyond the polarizing perceptions of a black-and-white approach to individuals, to capability, and to our future selves.

We pause to recognize advances in our elder justice movement that is coming of age just as ten thousand older Americans celebrate their 65th birthday every day. Advances are being achieved through awareness, research, practice, policy, legislation, justice, and the hard work of each of us.

We pause as birthday wishes are made for a bright future together. America’s public-health triumph of the 20th century gained us almost thirty years to extend and enrich our lives. To benefit fully from our longevity dividend, we must explore creative solutions to better engage older adults in our social and economic fabric while protecting those of us in our new old age from abuse and exploitation. In sum, abuse and exploitation comprise a 21st-century public health epidemic that debilitates society and the inherent potential of what will soon be a fifth (US Census Bureau) of our adult citizens. Older citizens are an untapped resource for society, but they are also a target for perpetrators, many within state guardianship systems.

To protect seniors’ net worth, self-worth, and lives, we go global. Our global is our year-round, 360-degree perimeter protection and care, fostered in communication and cooperation among our circles of support, cradled by trust.

Elder abuse is the betrayal of trust. Trust is most explicit in guardianship. It is also the trust most betrayed.

Antelope Island, Utah. July 27, 2023.

Elder justice is the promise of trust. Elder and justice are both forward-looking, as are promise and trust — individually, in sum, and in intention. Public health is forward-looking, too, with its emphasis on monitoring, effectiveness, and strategies toward prevention.

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 Hegel’s words (EB, 1999), paraphrased that,

“…the conflict is not between good and evil but between goods that are each making too exclusive a claim.”

Justice is not about just one cause or just another. Justice is inclusive and embracing coming full circle to become whole for society and for ourselves today and all along the way.

In memory of Mary Joy Quinn

This essay is dedicated to indefatigable, keen, caring Mary Joy Quinn (October 15, 1940 — January 23, 2024) who was director of the Probate Department, Superior Court of California, County of San Francisco, past president of the National College of Probate Judges, author of Guardianships of Adults: Achieving Justice, Autonomy, and Safety (2005), and so much more to so many colleagues.

Gratitude

I am grateful to the following persons for their work and/or review, which contributed to this article and contributes to the cause:

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