The Predicate

Every system of exploitation requires a predicate. Before property can be seized, before rights can be removed, before a person can be declared legally invisible, something must first happen to prepare the ground. In the case of guardianship abuse, that something is ageism.

Ageism is not simply the prejudice of individuals who hold contemptuous views about older people. As the World Health Organization has recognized, ageism the most socially normalized of all prejudices — one that operates through institutions, policies, professional practices, and cultural assumptions so pervasive they are rarely examined and almost never named. It is the quiet conviction, embedded in law and medicine and social organization alike, that older adults are less capable, less credible, less worthy of the procedural protections extended to everyone else. It is what makes a guardianship petition filed on the basis of a urinary tract infection seem reasonable. It is what makes a brief clinical assessment, conducted in a hospital room by a stranger, seem sufficient to determine whether a person may govern their own life. It is what makes the removal of an elder's rights feel protective rather than punitive — even when it is neither.

Ageism is the predicate. Without it, the system described in this publication could not function.

When Law Wears the Costume of Protection

The history of the Fourteenth Amendment illuminates something that the elder justice field has been slow to name. The amendment was ratified in 1868 not as an abstract philosophical commitment but as a direct legislative response to a documented pattern — the Black Codes — in which state legal systems used formally lawful mechanisms to strip rights from people deemed inferior or incapable of governing their own lives. The codes required deference. They restricted association. They criminalized independence. They wore the costume of order and protection while functioning as instruments of control. They were legal in form and devastating in effect.

The parallel to guardianship is not metaphorical. It is structural. When state courts remove the rights of older adults on the basis of age-based assumptions rather than individualized evidence — applying different standards to the older adults than to any other citizen facing comparable legal proceedings — they are operating within a recognizable American tradition: the use of law against the people it claims to protect. Ageism does not merely create the cultural conditions for guardianship abuse. It provides the legal system with the assumptions it needs to make that abuse invisible — to make the removal of rights look like care, and the exercise of power look like protection.

The Fourteenth Amendment was written precisely to interrupt that pattern. It has not yet been fully applied to guardianship. That is the work that remains.

What Ageism Is — and Is Not

Ageism is not the same as concern for older adults. The two are often conflated, and that conflation does significant harm. Genuine concern for older adults begins with the assumption that they are capable, self-determining persons whose choices deserve respect and whose voices deserve to be heard. Ageism begins with the opposite assumption — that age itself is evidence of diminishment, that older adults are a category requiring management rather than a population deserving rights.

The distinction matters because ageism can wear the face of care. The guardian who removes an elder from their home for their own safety may believe, sincerely, that they are acting in the elder's best interest. The judge who approves a plenary guardianship without a hearing may believe, sincerely, that efficiency serves the elder's welfare. The physician who signs a capacity assessment after a fifteen-minute interview may believe, sincerely, that they have done what is required. In each case, ageist assumptions — about what older adults can manage, what they deserve, what they are capable of wanting and choosing — are doing the work that evidence and procedure are supposed to do. The result is not care. It is substitution: the replacement of the elder's judgment with someone else's, authorized by law and insulated from challenge.

Robert Butler, who coined the term ageism in 1969, defined ageism as a process of systematic stereotyping and discrimination against people because they are old. In the decades since, researchers and advocates have documented ageism in healthcare, in employment, in housing, in media, and in law — finding that older adults are consistently underestimated, undertreated, underpaid, and underrepresented in the systems that govern their lives. What has received less attention is ageism in the justice system — in the courtrooms where capacity is assessed, where guardianships are granted, and where the rights of older adults are routinely removed with procedural informality that would be unthinkable if applied to any other population.

The World Health Organization has named the consequence of that informality with precision. Elder abuse — including the abuse that guardianship enables — is not merely a failure of care. It is, in the WHO’s own formulation, a violation of human rights, 

“a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person.” 

Ageism is what makes that violation possible. It is what allows the legal system to treat the removal of rights as a form of protection rather than as the deprivation it is.

The Making of Ageism

Aging itself has been poorly understood — and that misunderstanding is not accidental. In 1961, the same year that urban renewal was demolishing historic structures across America on the premise that anything old was obsolete, sociology published its first formal theory of aging: disengagement theory. IN 1961, Elaine Cumming and William Henry argued that aging was an inevitable, mutual withdrawal between the older person and the social systems they belonged to — a process natural, expected, and implicitly sanctioned. The theory gave social-scientific cover to what modernity was already practicing: the systematic devaluation of anything old, whether a building, a neighborhood, or a person. Employers who wanted to reboot their workforces gave older adults the boot. In 1942, Talcott Parsons had already elevated age to an analytical variable, helping to codify how people were expected to behave — and be treated — at different stages of life. The cultural script for older adulthood was being written, and it was a script of withdrawal, decline, and managed exit.

What was missing — and what took decades to arrive — was a more accurate and humane account of what aging actually is. Disengagement theory’s critics were swift: Robert Havighurst and colleagues used the same Kansas City data to reach the opposite conclusion, finding that older adults who remained active and socially engaged reported the highest life satisfaction. What Cumming and Henry had framed as natural withdrawal, Havighurst reframed as the consequence of societal barriers — forced retirement, ageism, loss of mobility — imposed on people who had no internal desire to disengage. This was activity theory, arriving almost simultaneously with disengagement theory as its direct rebuttal.

The debate between these two perspectives was synthesized a decade later by Robert Atchley, whose continuity theory proposed that aging people do not simply stay active or withdraw, but adapt by maintaining the internal and external structures that define who they are. Personality, patterns of thought, valued relationships, and meaningful engagement persist across the lifespan not as resistance to aging but as its healthy expression. Identity, on this account, does not dissolve with age. It deepens.

The most significant experimental break came in the 1990s, when Laura Carstensen at Stanford developed socioemotional selectivity theory — shifting the question entirely. Rather than asking what aging does to people, Carstensen asked what people do with time. Her research found that as the perceived horizon of time narrows, people do not disengage or merely continue — they prioritize. They invest in relationships that matter, seek emotional meaning over novelty, and bring to their later years a clarity of purpose that earlier stages of life rarely afford. This was not decline. It was motivation — sophisticated, conscious, and deeply human.

Taken together, these four theoretical frameworks — disengagement, activity, continuity, and socioemotional selectivity — trace a sixty-year journey from a model that treated older adults as the system's problem to one that recognizes them as agents of their own lives. That journey has not yet fully reached the legal system. A probate court that strips a person of their rights on the basis of a clinical assessment conducted in a hospital room has, in effect, never left 1961. The law is still operating on disengagement theory — and the people subject to it are paying the price.

What is striking about this theoretical evolution is that it unfolded almost entirely within the social sciences and psychology — fields that were, by the nature of their methods, looking closely at how older adults actually lived, what they actually wanted, and what actually supported their flourishing. The legal system was not looking. While gerontology was dismantling the disengagement model, probate courts were still applying its assumptions: that withdrawal is natural, that older adults are better managed than heard, that the appropriate response to vulnerability is the transfer of authority to someone else. The law was decades behind the science — and in some courtrooms, it remains so today.

The developmental tradition had its own gap to close. Erik Erikson's Childhood and Society, published in 1950, had proposed eight stages of psychosocial development across the lifespan, but as its title suggested, the emphasis was on childhood and adolescence. It was not until 1997 that Joan Erikson — Erik's lifelong intellectual partner, whose contributions to the model have too often been absorbed into his name rather than credited in her own — introduced a ninth stage, working from her own experience of late life after Erik’s death. Her concept of gerotranscendence named what the theoretical tradition had not yet captured: that late life carries its own distinct capacities, perspectives, and forms of wisdom — a shift toward a more expansive sense of self and connection, freed from what no longer matters, oriented toward what does. It is among the most courageous acts of scholarship in the field, written by someone who was living it.

By then, fifty years of cultural and institutional ageism had done significant damage. The seeds of the elder abuse epidemic, as one scholar has observed, were sown in that mid-century soil.

Understanding aging as a dynamic, lifelong process — shaped by biology, yes, but also by policy, culture, social connection, and the quality of the systems that surround us — is the precondition for any serious response to guardianship abuse. A society that frames aging as decline will reach for guardianship. A society that frames aging as development, that invests in the supports and relationships that enable people to exercise their capacities for as long as possible, will reach for something better. The choice between those two framings is not merely rhetorical. It is the most consequential policy choice the elder justice field faces — and the one it has been slowest to name.

Ageism and the Law

The law does not explicitly endorse ageism. The Age Discrimination in Employment Act, the Older Americans Act, and the Americans with Disabilities Act each reflect a legislative commitment — imperfect and inconsistently enforced — to the equal dignity and legal standing of older Americans. And yet, as Mark Andrews documented in his constitutional analysis of guardianship, advanced age alone was treated in thirty-five states as a sufficient basis to initiate guardianship proceedings. The double standard Andrews identified — in which conduct that would go unchallenged in a younger person becomes evidence of incapacity in an elder — is ageism encoded in procedure.

The courts have not yet fully confronted this. Equal protection doctrine, which prohibits irrational discrimination on the basis of protected characteristics, applies to age-based classifications in guardianship — but it has rarely been invoked in this context, in part because the people most harmed by it are the least positioned to litigate it. The result is a legal system that formally rejects ageism and structurally enables it.

Ageism and the Elder Justice Field

The elder justice field has made significant progress in naming and addressing ageism in healthcare, in financial services, and in the broader social environment. What it has been slower to confront is ageism within its own systems — including the guardianship system that operates under the legal authority of the state and, in too many cases, under the professional umbrella of elder care itself.

This matters because the elder justice field's credibility on ageism depends on consistency. A field that rightly condemns age-based stereotyping in hiring, in medical treatment, and in media representation cannot remain silent about age-based stereotyping in the courtrooms where its most vulnerable constituents lose their rights. The argument that guardianship is protective — that it exists to serve older adults rather than to harm them — does not resolve the ageism question. It raises it. Protection that operates on ageist assumptions, that substitutes institutional judgment for individual choice, that removes rights without the procedural rigor those rights deserve, is not protection. It is the exercise of power over a population deemed incapable of protecting itself.

The problem is not confined to older adults. Matthew S. Smith and Michael Ashley Stein, writing in the Petrie-Flom Center’s Bill of Health at Harvard Law School, have observed that adults with psychosocial disabilities face the same asymmetric power imbalance in guardianship proceedings — the same presumption of incapacity, the same transfer of authority, the same insulation from challenge. Their observation is direct: the power left open to abuse in guardianship requires urgent and systematic checking if the abuses of the past are not to be repeated. The ageism that animates guardianship abuse against older adults and the disability-based assumptions that animate it against younger adults are not separate problems. They are the same problem applied to different populations — and the elder justice field's credibility on both depends on its willingness to name the structural source they share.

That assumption — that older adults require management rather than rights — is ageism. And it is the foundation on which guardianship abuse is built.

The alternative begins with a different premise. A capabilities approach — introduced by Amartya Sen and developed in collaboration with Martha Nussbaum — asks not what a person can no longer do but what conditions would allow them to flourish. Sen's formulation emphasizes individual freedom and human agency; Nussbaum's identifies the universal capabilities that ensure human dignity. Together, as Sobia Jamil observes in a 2024 analysis of their complementary frameworks, they offer a model that balances ethical rigor with pragmatic adaptability — one that has been adopted across social theory, development studies, welfare economics, and political philosophy, and by international organizations including the United Nations, as a framework for assessing progress in terms of substantive freedoms rather than material wealth.

In the context of guardianship, that framing is precise. Guardianship, as it is too often practiced, does exactly the reverse: it tracks and manages material wealth while eliminating substantive freedoms. A capabilities approach begins with the presumption of personhood and agency. It treats vulnerability not as a reason for erasure but as a reason for support — for the scaffolding of relationships, services, and legal protections that allow a person to remain the author of their own life. Supported independence is what that approach looks like in law: the recognition that needing help is not the same as losing self, and that the law's highest obligation to a vulnerable person is not to replace their judgment but to support its exercise.

The Stakes

Ageism matters to this publication not as an abstraction but as an explanation. It explains why a system as consequential as guardianship has operated for decades with minimal oversight. It explains why the procedural failures documented by the Associated Press in 1987 — and by the American Bar Association, by state auditors, and by investigative journalists in the decades since — have persisted without fundamental reform. It explains why the voices of persons subject to guardianship are so rarely heard in the proceedings that determine their fate. And it explains why the elder justice field, for all its genuine commitment to dignity and autonomy, has been slow to treat guardianship as the civil rights issue it is.

Ageism is not inevitable. It is not natural. It is not an accurate reflection of what aging is or what older adults are capable of. It is a prejudice — one with deep roots, enormous consequences, and, like all prejudices, the capacity to be named, challenged, and changed.

That work begins here. It begins with the conviction that the answer to ageism is not merely its absence but its opposite — active, deliberate engagement with older adults as full citizens, full persons, and full participants in the decisions that shape their lives. Dr. Elizabeth Podnieks, founder of World Elder Abuse Awareness Day, and this author called that conviction engageism: the practice of replacing the diminishment of age with the recognition of it, replacing withdrawal with presence, replacing administration with relationship.

End ageism through engageism. It is not a slogan. It is a standard — one that Dr. Podnieks embodied throughout her life, and one that this publication carries forward in her name.

Sources

• Achenbaum, W. A. (2015). A history of ageism since 1969. Generations: Journal of the American Society on Aging, 39(3), 10–16. https://www.jstor.org/stable/26556123

• Cumming, E., & Henry, W. E. (1961). Growing old: The process of disengagement. Basic Books. https://search.worldcat.org/title/Growing-old-:-the-process-of-disengagement/oclc/1078826751

• Havighurst, R. J. (1961). Successful aging. The Gerontologist, 1(1), 8–13. https://doi.org/10.1093/geront/1.1.8

• Jamil, S. (2024). Amartya Sen, Martha Nussbaum, and the capability approach. Al-Hikmat: A Journal of Philosophy, 44, 73–87. Government College University, Lahore. https://pu.edu.pk/images/journal/phill/pdf_files/5_v44_24.pdf

• Nussbaum, M. C. (2006). Frontiers of justice: Disability, nationality, species membership. Harvard University Press. https://www.jstor.org/stable/j.ctv1c7zftw

• Parsons, T. (1942). Age and sex in the social structure of the United States. American Sociological Review, 7(5), 604–616. http://www.jstor.org/stable/2085686

• Sen, A. (1999). Development as freedom. Oxford University Press. https://search.worldcat.org/title/41404591 

• Smith, M. S., & Stein, M. A. (2021, September 29). Legal capacity and persons with disabilities' struggle to reclaim control over their lives. Bill of Health, Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, Harvard Law School. https://petrieflom.law.harvard.edu/2021/09/29/legal-capacity-disabilities/

• World Health Organization. (2015). World report on ageing and health. https://www.who.int/publications/i/item/9789241565042

• World Health Organization. (2024, June 15). Abuse of older people [Fact sheet]. https://www.who.int/news-room/fact-sheets/detail/abuse-of-older-people

Statutes

U.S. Const. amend. XIV. https://constitution.congress.gov/constitution/amendment-14/

Image: White Mountain National Forest, NH