Strengthening Elder Justice: A Strategy for Evaluation

Upholding elder justice requires a foundation of rights and trust. Evaluating how society approaches guardianship and other protective arrangements become a — no, the — critical test of how well we realize elder justice. To create and take the test, elder justice can learn a lot from our disability rights community, which has worked for decades to protect the decades of life that span our life course.

philip c marshall
BeyondGuardianship
25 min readJul 8, 2024

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This essay is the non-personal portion of a keynote (Zoom recording) delivered at a conference to commemorate World Elder Abuse Awareness Day (NCEA) co-sponsored by AARP Maine and Legal Services for Maine Elders and held at Husson University in Bangor, Maine; June 20, 2024. The event included a panel discussion on Elder Financial Abuse (Spotify) held by Maine Calling Maine Public and hosted by Jennifer Rooks.

Images, below, are from the keynote deck, which is available as a PDF file with active hyperlinks to references and resources.

The Road to Elder Justice WEAAD Virtual Art Gallery, National Center on Elder Abuse (NCEA), USC Center on Elder Mistreatment. World Elder Abuse Awareness Day, NCEA • Marshall, Philip. Keeping Pace with WEAAD’s Founder, Elizabeth Podnieks. NCEA blog. June 7, 2024.

World Elder Abuse Awareness Day

We are together today to commemorate World Elder Abuse Awareness Day.

This is our first “World Day” without Elizabeth Podnieks, its founder.

In Elizabeth’s honor, I submitted a tribute to the National Center for Elder Abuse highlighting her life’s work and legacy.

My tribute included a call to action:

It’s not how fast or far we run, it’s how we pass the baton. Dr. Elizabeth Podnieks has passed us the baton with flying colors, campaign-color purple at the lead. Let’s all keep pace.

The Path, Now

Today, I will address ageism, elder abuse, elder justice, rights, and guardianship.

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, paraphrased that…

G.W.F. Hegel. “Hegel’s Interpretation of Antigone.” Encyclopaedia Britannica. April 12, 1999)

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

Elder justice has made too exclusive a claim in addressing ageism.

Ageism isn’t an affliction that launches late in life; it starts at the starting gate.

Seniors are 81, and 21, and 18. Ageism starts early, even in childhood.

By focusing solely on how ageism impacts older adults, we overlook the chance to tackle ageism within the broader context.

Becker, Ernest (1973).The Denial of Death (Amazon) • Image: First edition cover, Wikipedia • Quote: p. xvii • Ernest Becker (Wikipedia) • Terror Management Theory (Ernest Becker Foundation) • Greenberg, Jeff, Tom Pyszczynski, and Sheldon Solomon (2015) The Worm at the Core (Amazon) • Routledge, Clay and Matthew Vess, editors (2018). Handbook of Terror Management Theory. (Amazon) Elsevier.

Ageism

Too often, humanity’s handling of our mortality — our “terror management” — pivots to ageism instead of more constructive ways to cope, and hope, and live.

Ageism, when rooted in prejudice against older adults, fosters disassociation and segregation.

Here — ambivalent, ageist persons may be primed to pivot away from older adults, away from their future selves.

As a result, campaigns combatting ageism may unintentionally backfire when guided by a laser focus on ageism against older adults, only.

“The greatest impediment to elder justice is ageism.”

Why did elder justice appropriate ageism?

…over ageism being one of the many cumulative, compounding inequalities throughout our life course.

Experts and advocates for older adults appropriated ageism as they were desperate.

Since the 70s I have taught and practiced historic preservation.

Historic preservation and elder justice may seem like two dissimilar fields, but they share profound commonalities:

  • Both harness disparate disciplines for a common cause;
  • Both seek to engage and empower communities to raise concern and capacity for our shared future;
  • Both respect and protect the ageless value of that which is old, sometimes until it’s too late;
  • Both share a common origin — they rose from the ashes of mid-20th-century modernity.
Union Station, Portland. Maine. June 25, 1888 — August 31, 1961. Photograph: stolenhistory.net • Union Station (Wikipedia).

Union Station, in Portland, was a magnificent late-19th-century civic structure…

Union Station, Portland. Maine. June 25, 1888 — August 31, 1961. Photograph: stolenhistory.net • Bouchard, Kelley. “From the dust of Union Station, Portland preservation arose.” Portland Press Herald. August 31, 2011 • Greater Portland Landmarks

…that fell victim to mid-century modernity, which railroaded the station to its premature destruction in 1961.

Mid-century modernity’s campaign devalued anything old, to include older places…

Disengagement Theory (Wikipedia) • Cumming, Elaine and Henry, William E. (1961). Growing Old: The Process of Disengagement (Amazon), p. 227.

…and older persons — for whom 1961 was a bad year, too.

In 1961, disengagement theory, sociology’s first formal theory on aging, was established in the publication of Growing Old: The Process of Disengagement by Elaine Cumming and William Henry.

The authors’ theory posits that,

“…aging is an inevitable, mutual withdrawal or disengagement, resulting in decreased interaction between the aging person and others in the social system he [sic] belongs to.”

Disengagement gave added momentum to other post-war trends. For example: employers, who wanted to reboot their work force, gave older adults the boot.

Talcott Parsons wrote the foreword.

Parsons, T. (1942). Age and sex in the social structure of the United States. American Sociological Review, 7, 604–616. • Bengtson, Vern L. (2016) Handbook of Theories of Aging. Vern L. Bengtson and Richard Settersten, editors. Springer Publishing. Quote, ch. 5.

Earlier, in 1942, Parsons…

“…elevated age from the status of a conditional to an analytical variable.”

In so doing, Parsons argued that age is a fundamental concept for understanding social structure — and now, as an analytical variable, for “scientifically” helping shape how people are positioned and expected to behave within society.

Goffman, Erving. (1956, 1959). The Presentation of Self in Everyday Life (Amazon) • Erving Goffman (Wikipedia) • The Presentation of Self in Everyday Life (Wikipedia)

Some seniors stepped in line, and played the part guided by concepts considered in The Presentation of Self in Everyday Life by Erving Goffman who received the American Sociological Association’s MacIver award — in 1961.

Erikson, Eric. Childhood and Society. W. W. Norton. 1950 • Erik Erikson and Joan Mowat Erikson(Wikipedia) • Erikson’s [eight] stages of psychosocial development (Wikipedia) • Erik H. Erikson and Erikson, Joan M. (1998). The Life Cycle Completed (Extended Version) • Abreu, T., Arau, L., and Ribeiro, O. How to Promote Gerotranscendence in Older Adults? A Scoping Review of Interventions. Journal of Applied Gerontology 2023, Vol. 42(9) 2036–2047

In 1950, Erik Erikson’s Childhood and Society explored psychosocial development across the lifespan.

Erikson proposed eight stages that individuals navigate, each with its own challenges and opportunities.

Yet, as its title implies, its focus was on childhood, and adolescence.

It was not until 1997 that, at age 94, Joan Erikson (Erik’s sage collaborator, and wife) introduced a ninth stage, which included strengths-based gerotranscendence.

But this was too late for the second half of the 20th century, and its older adults.

Bernstein, Carl. “Age and race fears seen in housing opposition” Washington Post. March 7, 1969.(No link discovered.) Bernstein included an interview with Robert N. Butler (Wikipedia). Achenbaum, W. Andrew. A History of Ageism Since 1969. Generations; San Francisco Vol. 39, Issue 3, (Fall 2015):10–16. • Butler, Robert N. (1969). “Age-Ism: Another Form of Bigotry.” The Gerontologist, Volume 9, Issue 4, Part 1, Winter 1969: 243–246.

Enhanced in this environment, modernity’s mid-century campaign gained formal recognition and its distinct name: ageism.

The term “ageism,” was coined in 1969 — publicly and in peer-reviewed publication — by gerontologist Robert Butler, first in reference to a proposed project in the affluent community of Chevy Chase, Maryland.

Butler was quoted by Carl Bernstein who wrote a Washington Post article titled “Age and race fears seen in housing opposition.”

Gawande, Atul. (2014). Being Mortal, p.39 • “An Interview with Erica Wood: A 40-Year Lookback on Guardianship.” Bifocal, Vol. 41, №2. American Bar Association, Dec-Nov 2019:189–190.

Modernity’s campaign against older citizens helped sow the seeds for elder abuse as an epidemic.

For some citizens, ageism, realized in the form of guardianship, was the coup de grace, the final blow.

“Old age is not a diagnosis,” observes Atul Gawande in Being Mortal.

Yet, “many statutes still [in the 1980s] included the term ‘advanced age’ in defining who needs a guardian,” notes Erica Wood of the American Bar Association.

Gottlich,Vicki . (1994), “Beyond Granny Bashing: Elder abuse in the 1990s.” Clearinghouse Review: Special Issue; p. 371, fn. 1

Elder Abuse

It is no wonder that persons combating “elder abuse” singled out ageism as a social impediment for older adults.

The term “elder abuse” emerged in 1978, gaining traction after Congressman Claude Pepper used it during a Congressional hearing, as chair of the Aging Committee.

Elder abuse, it’s not always what we think — it may be subliminal.

Leading with “elder,” the word-pair elder abuse may re-victimize older adults,

  • As it potentially primes us to victim-blame older adults, first;
  • Through guilt by association with perpetrators; and
  • As it casts older people as powerless and vulnerable, reinforcing stereotypes.

The archaic elder-abuser dyad is worse. It leaves out society, which is already disengaged — over being enraged.

These word pairs reveal a simplistic, debilitating dynamic that overlooks:

  • The root causes of this social harm and,
  • Many potential proactive societal solutions found nested in our circles of support.
“Elder Justice Act of 2002” — Title of talking notes written by M.T. Connolly for an early meeting toward what was enacted as The Elder Justice Act of 2009, passed in 2010 (ACL). Collection of M.T. Connolly • H.R.2718. Elder Justice Reauthorization and Modernization Act of 2023 was introduced, but has stalled in Congress • Eisenberg, Richard. How to Fix America’s Elder Justice Problem. Next Avenue. July 18, 2023 (Interview with M.T. Connolly.) • Connolly, M.T. (2023). The Measure of Our Age. Public affairs. Quote, ch. 13.

Elder Justice

M.T. Connolly titled her talking notes “Elder Justice Act of 2002” in advance of a meeting to discuss potential landmark legislation.

M.T. explains in her 2023 book, The Measure of Our Age,

“First, we needed a name. I liked “Elder Justice Act.” It was short and named what we were for rather than against.”

Finally, a proactive name for our campaign — advanced by the act enacted in 2010, and advanced by justice.

But, what does “elder justice” mean, and aim to achieve?

Marshall, Philip C. “A Paradigm Shift: From reactive ‘stop elder abuse’ campaigns to proactive, preventive elder justice.” Beyond Guardianship. November 17, 2023.

I explore these questions in two recent essays:

“A Paradigm Shift: From reactive ‘stop elder abuse’ campaigns to proactive, preventive elder justice.”

and…

Marshall, Philip C. “Elder Justice: A blueprint for an emerging coalition, scaled society-wide.” Beyond Guardianship. February 9, 2024.

… “Elder Justice: A blueprint for an emerging coalition, scaled society-wide.”

Nerenberg, Lisa. (2019). Elder Justice, Ageism, and Elder Abuse. Springer Publishing Company. Quote, p. xi.

At the heart of justice — elder justice, included — are rights.

As expressed by Lisa Nerenberg, in her book Elder Justice, Ageism, and Elder Abuse

“To me, the recasting of elder abuse as elder justice seems incomplete. It casts freedom from abuse as a right, yet fails to explain how abuse fits into the broader scheme of justice and human rights. I wrote this book to explore that failure.”

Elder Justice, Rights, and Guardianship

Along our shared path, how can we best assess our progress in achieving elder justice?

Upholding elder justice requires a foundation of rights and trust.

Evaluating how society approaches guardianships become a — no, the — critical test of how well we realize elder justice.

Guardianship. U.S. Department of Justice, Elder Justice Initiative.

As defined by the U.S. Department of Justice,

“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.”

Isabella Horton Grant. Photo: Sarah Anderson. • “The Isabella,” Judge Isabella Horton Grant Guardianship Award, National College of Probate Judges, 2012.

When I first started advocating for elder justice, I supported guardianship as one means to safeguard certain older citizens.

In 2012, I was co-recipient of the first Isabella Horton Grant Guardianship Award — The Isabella — presented by the National College of Probate Judges. 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.

Senator Anthony H. Palumbo; Teresa Kay-Aba Kennedy, Founder, Elder Dignity; Libra Max, Founder, #FreePeterMax; Philip C. Marshall, Founder, Beyond Brooke; and Senator George M. Borello. New York State Senate Guardianship Round Table Public Hearing (Facebook Live) New York City; August 25, 2022.

In 2022, New York State senators held a hearing on guardianship.

All twelve witness, save me, had tried to help loves ones from guardianship abuse and exploitation.

After that hearing, my work has been transformed — fueled by the insight of fellow witnesses, and other victims and experts nationwide.

I am 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, whose alleged aim is to protect citizens.

Luhmann, Niklas. Ed. (2017). Trust and Power. Polity.

Expressed in Niklas Luhmann’s Trust and Power:

Guardianship manifests society’s greatest responsibility held in trust, given the courts’ and guardians’ broad-scope fiduciary duties and the profound, asymmetric power imbalance imposed on persons subject to guardianship in the absence of beneficiary control.

Wood, Erica F. The Paradox of Adult Guardianship. Generations: Journal of the American Society on Aging. Vol. 36, №3, Elder Abuse and the Elder Justice Movement in America (Fall 2012), p. 79 • Erica Wood (LinkedIn), Assistant Director (retired), ABA Commission on Law and Aging (LinkedIn)

Erica Wood observed,

“Guardianship can be a godsend or a gulag, a help or a hindrance.”

Aviv, Rachel. How the Elderly Loose their Rights. The New Yorker. October 9, 2017

I refer you to Rachel Aviv’s terrifying report on guardianship, in The New Yorker.

Andrews, Mark D. (1997). The Elderly in Guardianship: A Crisis of Constitutional Proportions, p. 76 • U.S. Constitution, Legal Information Institute, Cornell Law School

Mark Andrews, explains:

“The guardianship process gives insufficient attention to indispensable constitutional safeguards, such as the rights to equal protection of the laws and due process…”

Constitutional rights are violated when the following, and others, are deficient or denied:

World Elder Abuse Awareness Day, United Nations.

Today, we commemorate World Elder Abuse Awareness Day.

So let’s go global to explore rights.

Brooke Astor (at age 96) receiving the Presidential Medal of Freedom from President Clinton, 1998. Photographer: Harry Hamburg. Ceremony (YouTube)

My grandmother received a lot of awards. But she would never want to be called a “ward” — of the state.

The same can be said for millions of other adults who have been, or are, subject to guardianship — and referred to in such demeaning ways.

Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act of 2017 (“uniform act”). Uniform Law Commission. Final Act;, Pp. 1–2. April 3, 2020 • Third National Guardianship Summit [October 2011] Standards and Recommendations, Recommendation #1.7, 2012, p. 1099.

Under the “Uniform Act” of 2017,

“…the terms ‘ward’ and ‘incapacitated person,’ which were rejected by the NGS [third National Guardianship Summit] as demeaning and even offensive, are eliminated…”

Luckily, we can refer to another “ward”…

World Congress on Adult Capacity, Scotland, 2022. • UN Convention on the Rights of Persons with Disabilities (CRPD) • Moran, Elizabeth A. The World is Watching: Highlights from the 7th World Congress on Adult Capacity. Bifocal, American Bar Association Commission on Law and Aging, Vol. 43 Issue 6. July 18, 2022. • Dworkin, Ronald. (2013). Taking Rights Seriously. Bloomsbury Publishing.

…namely Adrian Ward, president of the 2022 World Congress on Adult Capacity, which was held in Scotland.

World Congress achievements were chronicled in The World is Watching: Highlights from the 7th World Congress on Adult Capacity (2022) by Elizabeth A. Moran of the American Bar Association. As noted in the World Congress program,

“…recent developments in international human rights law…are requiring a complete culture change from systems which simply provide safeguards against unjustified intrusions in the lives of persons with mental disabilities to actively supporting and protecting the exercise of mental capacity to ensure individual autonomy on an equal basis with others.”

The World Congress no longer includes “guardianship” in its title.

President Ward did not use the word “guardianship” in his entire farewell address.

However…

UN Convention on the Rights of Persons with Disabilities (CRPD) • Optional ProtocolStatus of Ratification Interactive DashboardImage (Wikipedia)

…President Ward did note the failure of the United States to ratify the UN Convention on the Rights of Persons with Disabilities (CRPD).

The convention has been adopted by all UN members, with the exception of eight nations who are signatories.

UN Convention on the Rights of Persons with Disabilities (CRPD) • The Optional ProtocolStatus of Ratification Interactive DashboardImage (Wikipedia)

Nor, has the United States ratified the convention’s Optional Protocol.

Marshall, Philip C. Press On! Beyond Guardianship. August 15, 2023

Press On!

My first essay on guardianship chronicled the nationwide reporting on the subject by investigative journalists.

The most extensive investigation to date was a catalyst for a Congressional hearing, in 1987.

The hearing’s briefing was titled…

Abuses in Guardianship of the Elderly and Infirm: A National Disgrace. A Briefing by the Chairman [Congressman Claude Pepper] of the Subcommittee on Health and Long-Term Care of the Select Committee on Aging, House of Representatives. September 25, 1987.

… Abuses in Guardianship of the Elderly and Infirm: A National Disgrace.

Congressman Claude Pepper concluded…

“In one short sentence, it [guardianship] is the most punitive civil penalty that can be levied against an American citizen, with the exception…of the death penalty.’’

Abuses in Guardianship of the Elderly and Infirm: A National Disgrace. A Briefing by the Chairman [Congressman Claude Pepper] of the Subcommittee on Health and Long-Term Care of the Select Committee on Aging, House of Representatives. September 25, 1987. Testimony.

Bill Ahearn of The Associate Press testified on AP’s six-month investigation of 2,200 guardianship cases.

AP’s findings were the catalyst for the Congressional hearing.

The Providence Journal elder-abuse series, 2018. Series articles listed and linked to at Marshall, Philip C. Press On! Beyond Guardianship. August 15, 2023.

Here are three other examples.

For The Providence Journal, Tracy Breton, recipient of a Pulitzer Prize for investigative reporting, led a team of Brown University students who ran a series of articles on guardianship in 2018.

Jack Brook, one of the journalists, reflected,

“We saw how important journalism can be to hold people in public office accountable and to press for meaningful reform.”

In the Name of Protection, Bloomberg Law. 2023. Series articles listed and linked to at Marshall, Philip C. Press On! Beyond Guardianship. August 15, 2023.

Bloomberg Law published an investigation titled “In the Name of Protection,” in 2023.

In an interview with Katie Barlow, lead investigative reporter Ronnie Greene noted,

“On one hand, rights severely restricted and taken away; on the other hand, no oversight…that…opens the door for major abuse and neglect.”

Samantha Hogan, Journalist, The Maine Monitor, 2019–2024. Reporting on Maine’s court system through the ProPublica Local Reporting Network.

Last year, The Maine Monitor, in partnership with ProPublica Local Reporting Network, published a six-month-long series on Maine’s probate court, which includes guardianship.

The principal investigative reporter was Samantha Hogan, whose accomplishments include:

The Maine Monitor Maine probate court investigation cumulated in 11 articles:

Samantha Hogan (LinkedIn) • The Maine MonitorLivingstone Award for Young Journalists, June 11, 2024.

On June 11, Hogan received the 2024 Livingston Award for Young Journalists, for local reporting on Maine’s probate courts and guardianship.

Hogan, Samantha. Against Their Will: Maine’s probate courts lack a method to detect fraud. Some other states have robust audit systems. The Maine Monitor. December 3, 2023

In a series article about fraud in guardianship, Hogan notes,

“The antiquated, underfunded and understaffed probate courts have left Mainers vulnerable to being ripped off. A Monitor survey earlier this year of 10 of the state’s [16] probate courts revealed that many do not audit conservators or guardians.”

Resolves of the State of Maine as Passed by the One Hundred and Third Legislature 1967. Chapter 77: RESOLVE, Proposing a Constitutional Amendment Repealing the Offices of Judges and Registers of Probate as Constitutional Officers. Effective October 7, 1967; pp. 1353–135.

In 1967, Maine voters amended the state constitution to set up a new probate court system with full-time judges.

It repealed the county-based system, established in the 1850s.

Summary of Selected Events, Reports and Recommendations Regarding Probate Court Reform. Commission to Create a Plan to Incorporate the Probate Courts into the Judicial Branch — Background Materials. Revised November 29, 2021 • Report of the Commission to Create a Plan to Incorporate the Probate Courts into the Judicial Branch. December 2021.

The constitutional amendment never went into effect because it was contingent on legislators passing a plan to transition to a new court system.

In 2021, the Commission to Create a Plan to Incorporate the Probate Courts into the Judicial Branch published its report. The first recommendation was that,

“The county probate court system should be fully incorporated into the state Judicial Branch through the deliberately multi-step process detailed in Recommendations B to F.”

There has been lack funding, and opposition.

Maine’s constitution says people in guardianships with mental illness cannot vote. Voters can change that in November. Samantha Hogan. The Maine Monitor. October 8, 2023

In an interview with Samantha Hogan in 2023, State Senator Craig Hickman said,

“At some point the Legislature is going to have to find the political will to do something that establishes a probate court system that hires full-time judges, because that’s what the constitution has told the Legislature to do…”

Maine is provided with a mandate, and a way in which needs can be met with opportunities‚

  • The opportunity to protect citizens’ rights.
  • The opportunity to harness existing state initiatives, resources, and acts so that guardianships will become unnecessary.
Functional federalism: Our great united states — all-stars of different stripes.

Functional federalism, through our life course

What follows is framed in the context of functional federalism, which includes the federal government and our great “united states,” all-stars of different stripes.

Combatting guardianship harm starts with states and their citizens.

But states cannot do it alone, especially in response to guardianship abuse and exploitation — acts that are deplorable, unconstitutional, criminal, systemic, and nationwide.

These crimes affect every community and cut across all racial, religious, social, economic, political, and geographic lines.

Pogach, Dari and Wu, Christopher. The Case for a Guardianship Court Improvement Program: Federal Funding to State Courts Could Improve Guardianship Systems and the Lives of Millions of Older Adults and People with Disabilities. Syracuse Law Review. Vol. 72. 2022 (II. The Evolution of Guardianship as a State-Based Institution, 1. Guardianship law is state law, p. 501.

“Guardianship law is state law.”

Yet some guardianship laws, and their administration, do not make certain states safe for older citizens to live or die in.

Perpetrators know this, to their advantage.

To game this, some perpetrators even conduct interstate human trafficking.

To help combat guardianship abuse Congress passed…

Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act of 2017. ULC. Final Act; April 3, 2020 • U.S. Senate Committee on Aging; Ensuring Trust, 2018.

…the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act of 2017.

When Senator Collins was chair, the U.S. Senate Committee on Aging recommended its nationwide adoption.

Maine was the first state to adopt the act, slightly amended. Maine has met need with opportunity.

And so…

MRS Title 18-C, Article 5. Maine Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act. 2019.

“As goes Maine, so goes the nation” — leading the way…

The Maine Elder Justice Roadmap (2021). An initiative of the Maine Elder Justice Coordinating Council, established by Executive Order of Governor Janet T. Mills. Support from the John T. Gorman Foundation and the Muskie School of Public Service, University of Southern Maine.

…and with a roadmap,

The Elder Justice Roadmap, an initiative of the Maine Elder Justice Coordinating Council, which was established by Executive Order of Governor Mills.

Here is one example of a waypoint along the path of elder justice cited in the Roadmap…

Maine: Collaboration of APS, EAIME, and researchers. ACL funded. Ref: The Maine Elder Justice Roadmap: An initiative of the Maine Elder Justice Coordinating Council (2021) • Burnes, D., Connolly, M-T, Salvo, E., Kimball, P.F., Rogers, G., & Lewis, S. (2023) RISE: A Conceptual Model of Integrated and Restorative Elder Abuse Intervention. The Gerontologist, Volume 63, Issue 6, 966–973.

RISE is a Conceptual Model of Integrated and Restorative Elder Abuse Intervention.

The international team involved in RISE includes Maine’s…

• Erin Salvo of the Office of Aging and Disability Services, and

• Patricia Kimball of the Elder Abuse Institute of Maine

Appendix C: PP [Public Policy] Recommendations Supplementary Material. Secondary Recommendation: Increase the use of restorative justice approaches in cases of elder abuse for use in criminal justice, financial enforcement, and guardianship systems. The Maine Elder Justice Roadmap: An initiative of the Maine Elder Justice Coordinating Council. December 2021, p.100.

The RISE model may help divert cases away from courts that handle guardianship.

As referenced, an option may be to…

“…refer cases to RISE — either as an alternative to, or to augment legal intervention.”

Neugarten, Bernice L. (1974). Age Groups in American Society and the Rise of the Young-Old. The Annals of the American Academy of Political and Social Science, Volume 415, Issue 1, pp. 187–198. • Bernice Neugarten: University of Chicago Photographic Archive, apf7–00931. (Wikipedia) • Khag, Hyun Kang and Kim, Hansol. Ageism and Psychological Well-Being Among Older Adults: A Systematic Review. Gerontology & Geriatric Medicine Volume 8: 1–22.

Ageism and Ableism

Fifty years ago, Bernice Neugarten, in one of her seminal articles, identifies the “young-old” as potential…

“social contributors, as well as the self-fulfilled”

Yet, still: for complacent citizens today, the term “senior discount” may seem redundant, for they already feel that seniors are discounted, largely due to ageism.

In this environment, it is understandable that ableism is a silent partner — as ageism (a social disability) may have already discounted older adults decades before persons experience physical or intellectual disabilities.

Ageism can create a breeding ground for ableism, as older adults may be seen — and feel themselves — as inherently less capable, well before any personal disability arises.

By examining ageism and ableism throughout life, we can develop a more proactive approach to address and dismantle the cumulative burdens of ageism, ablism, and other intersectional inequalities.

For decades, the disability rights community has been advocating for rights through our life course, not only for those in later life, for persons Neugarten describes as the ”old-old.”

Sutherland, Allan T. (1991). Disabled We Stand. Brookline Books, p. 18.

As expressed by Allan Sutherland,

“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.”

…through our life course.

All-stars of different stripes • Columbus Fountain (1912), Union Station, Washington, D.C. Sculptor, Lorado Taft. (Wikipedia)

It’s not only our “united states” who are all-stars of different stripes.

Citizens statewide and countrywide are all-stars of different stripes — with different customs, different ideas, and different abilities.

Ageism and Ableism, Oxford English Dictionary • ADvancing States represents the nation’s 56 state and territorial agencies on aging and disabilities and long-term services and supports directors.

In concert, the disability rights and elder justice communities can impart hybrid vigor to our campaign against ableism and ageism in the broader context our life course—other intersectional inequalities, included.

Elder justice can advance…

…with insight provided by the decades of experience and success the disability rights movement has gained in advocating for rights, life long.

Then, we can better place elder justice in to…

Nerenberg, Lisa. (2019). Elder Justice, Ageism, and Elder Abuse. Springer Publishing Company. p. xi.

“…the broader scheme of justice and human rights.”

Nationwide, elder justice and disability rights advocacy movements must work together, more.

All too often they are isolated, as are citizens they seek to help.

What I am referring to here is private and third-sector advocacy, while recognizing the tremendous, existing joint efforts in services and support…

Mission statement: Office of Aging and Disability Services (OADS), Department of Health and Human Services, State of Maine.

…in Maine, in the Office of Aging and Disability Services whose mission is to,

“To promote the highest level of independence, health, and safety for older adults and adults with disabilities throughout Maine.”

…and its partners, and..

Administration for Community Living, U.S. Department of Health and Human Services.

…the Administration for Community Living, and its partners, which is

“Advancing independence and inclusion of older adults and people with disabilities.”

Uniform Guardianship, Conservatorship and Protective Proceedings Act of 2017. National Conference of Commissioners on Uniform State Laws. • Title 18-C, Article 5: Maine Uniform Guardianship, Conservatorship and Protective Proceedings (PL 2017).

Toward buttressing our constitutional rights, Disability Rights Maine and Legal Services for Maine Elders — in tandem with other advocates statewide — worked hand in hand to help gain adoption of the “Uniform Act” in Maine.

An Act Clarifying the Rights to Legal Representation and to Communicate with Others for Individuals Subject to Guardianship. Chapter 500 H.P. 1325 — L.D. 1774. Sec. 1. 18-C MRSA §5–310, sub-§2. • Legislative history, bill trackingTestimony of Michael Kebede, Esq., Policy Counsel, Policy Department, ACLU Maine. January 14, 2022.

To further buttress our constitutional rights, in Maine the right to legal representation for persons subject to guardianship was clarified, in 2022.

Testimony was provided by ACLU Maine.

National Center for State and Tribal Elder Justice Coalitions • Funded through a grant from the Office for Victims of Crime, Office of Justice Programs, U.S. Department of Justice • GranteesMaine Council for Elder Abuse Prevention • Grant applicant, manager: Governor’s Office of Policy Innovation and the Future/Cabinet on Aging; Beneficiary: State of Maine Elder Justice Coordinating Partnership

Enter, the nascent National Center for State and Tribal Elder Justice Coalitions, whose launch has been funded by the U.S. Department of Justice.

The coalition recently awarded grants to seven states and one tribal coalition. Maine received an award to enhance its extant program.

Functional federalism recognizes our “laboratories of democracy,” our great united states . In this context, coalition members can share state and tribal achievements and lessons learned, including those in addressing guardianship, which provides the litmus test for our social compact between society and self.

Marshall, Philip C. The Elder Justice Coordinating Council, in partnership with members, can address and arrest adult guardianship abuse and exploitation as state-sponsored white-collar crime. April 24, 2024.

Today, I have focused on the need to uphold constitutional rights for persons subject to guardianship as a litmus test for elder justice.

But, at times, lack of oversight permits guardians to abuse and exploit persons in their charge by betraying, or even “hacking” trust — with no consequence.

At times, guardianship provides the means, and even the motive, for state-sponsored white-collar crime, even racketeering — through omission, commission, and collusion.

In April, I detailed my concern in a response to a Federal Register-posted “request for information” by the Administration for Community living, which acted on behalf of the Elder Justice Coordinating Council, which, in turn…

Passed in 2010, the Elder Justice Act of 2009 establishes the Elder Justice Coordinating Council(EJCC) to coordinate activities related to elder abuse, neglect, and exploitation across the federal government. The EJCC is directed by the Office of the Secretary of Health and Human Services, and the Secretary serves as the Chair of the Council.

…includes 17 federal agencies, with the Department of Health and Human Services and Department of Justice at the forefront, as dictated by the Elder Justice Act of 2009,

“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”

The FBI is not a member. But…

Gray Horse Cemetery, Oklahoma. April 2024 • Grann, David. (2017). Killers of the Flower Moon: The Osage Murders and the Birth of the FBI, ch. 5.

The Federal Bureau of Investigation is no stranger to guardianship — as chronicled in David Grann’s book, Killers of the Flower Moon: The Osage Murders and the Birth of the FBI, which investigated the state-sponsored guardianship abuse and exploitation that still affect the Osage Nation, today.

Grann explains,

“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.”

On my way to Maine, I stopped by the Osage Nation to witness the results of the 1920s and their fallout, a century later.

Most Osage buried in this part of the Gray Horse Cemetery were murdered. The names will be familiar to those who read Grann’s book or saw Martin Scorsese’s film.

Elder Abuse Prevention and Prosecution Act of 2017 • Elder Justice Act of 2009 (enacted in 2010), via ACL.

The Elder Abuse Prevention and Prosecution Act (EAPPA) has directed the U.S. Department of Justice to help train FBI agents in the investigation and prosecution of elder-abuse crimes.

EAPPA also directs the Attorney General to designate in each Federal judicial district not less than one Assistant U.S. Attorney to serve as an Elder Justice Coordinator for the district.

We are honored to have Maine’s Elder Justice Coordinator, Assistant U.S. Attorney Andrew McCormack, with us today — and all along the way.

EAPPA also addresses court-appointed guardianship oversight activities under the Elder Justice Act.

I provided a statement to the U.S. Senate Special Committee on Aging, for its March 30th, 2023, hearing titled “Guardianship and Alternatives: Protection and Empowerment.”

I sent my statement to an Elder Justice Coordinator who is also a member of a White-Collar Crimes Unit.

His reply was..

Marshall, Philip. Guardianships, Conservatorships, and Alternatives: Statement. Elder Abuse and Financial Exploitation in Adult Guardianship as State-Sanctioned White-Collar Crime. Statement provided to the U.S. Senate Special committee on Aging. March 23, 2023. Full committee hearing on Guardianship and Alternatives: Protection and Empowerment, March 30th, 2023.

“You are spot-on about guardianship elder abuse.”

UN Convention on the Rights of Persons with Disabilities (CRPD) • The Optional ProtocolStatus of Ratification Interactive DashboardImage (Wikipedia)

As citizens of Maine concerned about rights, and accountability, and our future selves, while the UN UN Convention on the Rights of Persons with Disabilities Optional Protocol is not about to be signed by United States anytime soon…

…you can all advocate on behalf of persons subject to elder abuse, guardianship abuse, included. You can advocate in Augusta, and connect with your legislators back home. You inform investigative journalist of stories and solution to guide Maine’s leadership in protecting our future selves.

Maine State House , Augusta, Maine. Historic American Building Survey (HABS ME-130–2); Jack Boucher, photographer, c.1933. Lady of WisdomWilliam Clark Noble, sculptor.

With wisdom, joined by compassion, I suggest that the Joint Standing Committees on Judiciary and on Health and Human Services hold hearings on guardianship and invite, as witnesses, persons who have suffered harm.

In his closing remarks at the 1987 Congressional hearing on guardianship subtitled “A National Disgrace,” Congressman Claude Pepper said…

Pepper, 87, asks U.S. Rules on Guardianship. Los Angeles Times. September 25, 1987 • Abuses in Guardianship of the Elderly and Infirm: A National Disgrace. A Briefing by the Chairman [Congressman Claude Pepper] of the Subcommittee on Health and Long-Term Care of the Select Committee on Aging, House of Representatives. September 25, 1987.

“I wonder if they’ll get me. I’m 87. I have to be on the alert.”

California Senate, SCR 153: Elder and Dependent Adult Abuse Awareness Month. (Session Year: 2023–2024). Bill Author: Bill DoddElder and Dependent Adult Abuse Awareness, social media kit; California Association of Area Agencies on Aging • The Arc CaliforniaJuneteenth (Wikipedia) • Graphic: UA Little Rock (2023) • S.475 Juneteenth National Independence Day Act; June 17, 2021)

The California legislature acknowledges June as Elder and Dependent Adult Abuse Awareness Month.

I propose that Maine do the same, for next year.

Yesterday, on Juneteenth — a Congressionally recognized holiday — we commemorated Emancipation Proclamation and the 13th Amendment that abolished slavery and involuntary servitude, except as punishment for a crime.

Yet some adult citizens remain in “involuntary servitude” — in permanent, plenary guardianships — without parole.

Maine has adopted the Uniform Guardianship Conservatorship and Other Protective Arrangement Act.

With probate courts moved, and with the act as a fulcrum, Maine has the opportunity to adhere to the letter and spirit of the law in..

  • upholding constitutional rights, and
  • practicing supported decision making, only.

Maine’s probate courts joining the Judicial Branch presents a chance to explore more supportive alternatives to guardianship, which must be eliminated. These steps will help protect our citizens, our freedom, and our future selves.

Symbols and other conventions: Obsolete [†]. Oxford English Dictionary.

Maine can lead our “united states” to having the United States a step closer in adopting the Convention on Rights of Persons with Disabilities, and in rendering guardianship obsolete.

Longfellow, Henry Wadsworth. In the Harbor, Elegiac Verse, XI. Houghton Mifflin & Co., 1882 • Sunrise from Cathedral Valley across Capitol Reef National Park to the Henry Mountains, Utah. July 20, 2023.

Henry Wadsworth Longfellow explains,

“If you would hit the mark, you must aim a little above it

Every arrow that flies feels the attraction of earth.”

Grounded by the gravity of elder abuse, let’s aim high and hit the mark.

Gratitude

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

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