Standing

The full essay is available here as a PDF.

I believe that the Eighth Amendment not only protects the right of individuals not to be victims of cruel and unusual punishment, but that it also expresses a fundamental interest of society in ensuring that state authority is not used to administer barbaric punishments.

— Justice Thurgood Marshall, dissenting, Gilmore v. Utah (1976)

I. The Question the Law Has Managed to Avoid

Who counts?

That is not a rhetorical question. It is the legal question at the center of elder justice — and it is a question the law has so far managed to avoid answering. Every proceeding that touches the life of an older adult in crisis produces a version of it. Who has the right to be heard? Whose account of the harm matters? Whose presence in the room is recognized as legitimate? The answers the law currently gives are narrow, historically contingent, and theoretically indefensible. This essay argues that they can — and must — be changed.

The argument arrives at this essay already substantially built. Circles of Support established the ecological foundation: the concerned person — the family member, the trusted friend, the neighbor who has been present and watchful — is the capable guardian at the innermost ring of the protective microsystem. Their exclusion from formal protective proceedings is not a neutral administrative choice. It is ecologically catastrophic, removing the party most positioned to detect harm, resist exploitation, and sustain the older adult’s connection to the social fabric that protects them. Lawful but Awful established the zemiological foundation: elder abuse produces a wider circle of harm than criminal law recognizes, and the concerned person is a secondary victim whose injury is real, documentable, and morally cognizable even when the law declines to recognize it.

Standing builds the legal argument. The concerned person currently has no standing in most protective proceedings — no right to be notified, no right to be heard, no right to seek review when a guardian fails. This essay traces the history of victim standing in Anglo-American law, examines the victims’ rights movement’s partial and uneven progress, and makes the case that elder justice represents the movement’s most significant contemporary test case and its most conspicuous unfinished business. The legal argument rests on three claims: that the exclusion of the concerned person is not constitutionally required; that it is not historically inevitable; and that it is not theoretically defensible.

The entry point is the question with which Lawful but Awful closed: Who counts? The reader arrives here already holding the ecological argument and the zemiological argument. Standing does not need to re-establish those foundations. It can cite them and build from them. What it adds is the legal argument — the claim that the concerned person’s exclusion from protective proceedings is itself a legal wrong, and that the law possesses the tools to correct it if it chooses to use them.

Chaïm Perelman’s philosophical analysis of justice provides the grounding for the reform argument: justice requires that like cases be treated alike. A party who bears harm must be recognized as a party. The concerned person bears harm — direct, documented, zemiologically cognizable harm. The law’s refusal to recognize that harm as legally cognizable is not a neutral application of standing doctrine. It is a decision, dressed in procedural language, that the concerned person does not count. That decision is not legally required. It is a choice, and it can be changed.

Figure 1. The Standing Gap maps the structural mismatch at the heart of the essay’s argument. The left column identifies the four categories of parties who bear harm when an older adult is exploited, abused, or isolated: the older adult as primary victim; the concerned person as secondary victim; family and community as tertiary harm-bearers; and society as the ultimate absorber of structural and financial costs. The right column identifies the four parties who hold standing in current protective proceedings: the state or petitioner, who controls the evidentiary record; the court-appointed guardian, who exercises plenary authority as a stranger to the older adult; the bank, which processed the transfers because the instrument was valid and the signatures matched and whose inquiry closed there; and the respondent, who holds full procedural standing as a party. The gap between these columns — indicated by the vertical NO CROSSING marker — is not constitutionally required, not historically inevitable, and not theoretically defensible. It is a choice the law can change.  

Figure 2. The Arc of Standing traces the history of victim recognition in Anglo-American law across four eras. The Colonial Baseline (pre-1800) treated the victim as investigator, prosecutor, and direct beneficiary of restitution — conflict belonged to its owner. The Displacement (1800–1970) systematically removed the victim from that central role: the public prosecutor became dominant (Connecticut 1704, dominant by 1810), and Abraham Goldstein’s analysis confirmed that the crime was no longer the victim’s. Nils Christie’s double loser formulation names the structural result. The First and Second Waves (1970–2017) partially reclaimed victim standing through state statutes, constitutional amendments (33 states by the 1990s), and culminating in the Crime Victims’ Rights Act of 2004 (CVRA), 18 U.S.C. § 3771, and the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA) (2017, 19 states). The Elder Justice Frontier — the domain the movement has not yet entered — is the essay’s reform target. Fifty years of progress. One domain untouched. Sources: McDonald (1976); Goldstein (1982); Christie (1977); Beloof (2005); VOCA (1984); CVRA (2004); UGCOPAA (2017); Marsy’s Law (2024).

II. A History of Displacement

Before victims were excluded from legal proceedings, they were at their center.

In colonial America, the system of law enforcement was built almost entirely on private initiative. Victims investigated crimes, retained attorneys, and prosecuted offenders at their own expense. Sentencing included orders of restitution paid directly to the injured party. The victim was not at the periphery of the process — the victim was the process. As William F. McDonald documents in his account of the colonial criminal justice system, the victim’s roles as policeman, prosecutor, and punishment beneficiary were not aberrations. They were the design.

The displacement of the victim from this central role was gradual, ideologically driven, and — in important respects — a product of historical misunderstanding rather than principled legal development. Cesare Beccaria’s Enlightenment argument that the criminal justice system should serve society rather than the individual victim provided the philosophical justification. The emergence of professional police and the rise of the public prosecutor provided the institutional mechanism. By the mid-nineteenth century, the victim had been reduced, in Abraham Goldstein’s phrase, to the role of informant and witness. The crime was no longer the victim’s. It belonged to the state.

Goldstein identifies the critical moment of displacement: when the civil action for damages was split off from the criminal prosecution, and a fine paid to the government became a substitute for compensation previously paid by the offender to the victim. “The victim has been left to play a distinctly secondary role,” Goldstein writes. “His injury becomes the occasion for a public cause of action, but he has no standing to compel prosecution of the crime against him or to contest decisions to dismiss or reduce the charges or to accept plea bargains, or to challenge the sentence imposed on the offender who injured him, or to participate in hearings on restitution.”

Goldstein further argues that the prosecutor’s monopoly over criminal proceedings was “more the result of a misunderstanding of history than of explicit legislative direction.” The American courts confused the English Attorney General’s power to terminate or take over private prosecutions — a reviewing authority — with an exclusive power to initiate proceedings in the first place. From that historical error, the victim’s displacement from participant to witness was complete.

The structural logic of that displacement — victims reduced to instruments of the state’s agenda, their independent interests rendered legally invisible — is precisely the logic that governs the concerned person’s position in protective proceedings today. The guardianship system did not displace the concerned person through principled constitutional reasoning. It displaced them through institutional accretion, bureaucratic self-interest, and the same assumption that animated the displacement of victims from criminal proceedings: that the state, speaking through its appointed representatives, adequately represents all interests worth recognizing.

That assumption was false in 1800. It remains false today.

III. The Victims’ Rights Movement and Its Limits

What the Movement Achieved

The victims’ rights movement that emerged in the early 1970s was an unlikely coalition — feminist advocates for survivors of sexual assault and domestic violence, conservative law-and-order proponents responding to the Warren Court’s expansion of defendants’ rights, and families of crime victims who had experienced firsthand the system’s indifference to their presence. What unified them was a shared conviction that a criminal justice system without any recognition of victims and their interests was antiquated and unfair.

The movement’s achievements across five decades are substantial. The first wave of reforms — roughly 1970 through the early 1980s — produced state statutes creating victims’ rights to attend trials, victim compensation funds, restitution provisions, rape shield laws, and better enforcement of protective orders in domestic violence cases. The second wave — beginning with the 1982 Report of the President’s Task Force on Victims of Crime — produced constitutional protections for victims’ rights in state after state. By 2024, thirty-seven states had amended their constitutions to guarantee victims certain rights to participate in criminal proceedings. Marsy’s Law, the most comprehensive of these constitutional frameworks, explicitly extends victim status to family members and those with relationships substantially similar to family relationships.

At the federal level, the Crime Victims’ Rights Act of 2004 (CVRA), 18 U.S.C. § 3771, created enforceable rights for victims of federal crimes: the right to reasonable protection, to notice of proceedings, to be present, to be heard, to confer with prosecutors, to restitution, and to be treated with fairness and dignity. In the six years following the CVRA’s passage, the number of identified federal crime victims increased by 298 percent. That figure is not merely a bureaucratic statistic. It is evidence that when Congress chooses to define victim broadly and creates mechanisms to enforce that definition, people who previously had no legal standing are brought within the protection of the law.

The CVRA also contains a provision that is directly relevant to the concerned person’s position in protective proceedings. Under 18 U.S.C. § 3771(e), when a crime victim is under 18, incompetent, incapacitated, or deceased, “the legal guardians of the crime victim or the representatives of the crime victim’s estate, family members, or any other persons appointed as suitable by the court, may assume the crime victim’s rights.” Congress has already recognized, in the criminal context, that the incapacity of a primary victim does not extinguish the standing of those who care for and about that person. That recognition has not been extended to civil protective proceedings. The extension is overdue.

What the Movement Left Undone

Michael Vitiello’s 2023 assessment of the victims’ rights movement documents what it got right and what it got wrong. Among its failures, Vitiello identifies the movement’s narrow definition of victimhood — a definition shaped by the crime control agenda rather than by the actual range of people who are harmed by crime and its consequences. The movement has been most successful, Vitiello argues, when its agenda was congruent with the prosecution’s agenda. When victims sought standing to litigate or enforce interests that might diverge from the prosecution’s position, they have been largely unsuccessful.

Susan Bandes identified this dynamic in her 1999 analysis of victim standing doctrine. “The sorts of victim initiatives that have been successful have been those, and only those, that advance the prosecution’s own agenda, while preserving the prosecution’s complete freedom from third-party interference.” Victims seeking their own standing to litigate interests that might diverge from the prosecution’s have ended up mainly with unenforceable promises and the opportunity to assist — or, as Bandes puts it, be used by — the prosecution in attaining a harsh sentence.

Both critiques point to the same structural problem: the victims’ rights movement has been captured by the punishment apparatus it was meant to supplement. It has produced rights that are real when the state’s interests and the victim’s interests coincide, and illusory when they diverge. Douglas Beloof named this problem directly: crime victims’ constitutional rights are illusory unless they are backed by standing, remedy, and non-discretionary review. Without those three elements, the government — the very party against whom victims’ rights are meant to be exercised — retains complete authority to ignore them.

Elder justice has been almost entirely absent from this movement. The victims’ rights framework developed in the context of criminal proceedings: prosecution, sentencing, parole, restitution. Protective civil proceedings — guardianship, conservatorship, adult protective services intervention — were never part of the movement’s agenda. They remain outside its scope today. The concerned person in a guardianship proceeding has fewer recognized rights than a crime victim in a South Carolina misdemeanor prosecution. This is not because the concerned person’s harm is less real. It is because the movement has not yet made the extension.

IV. Who Owns the Conflict?

Nils Christie’s 1977 essay “Conflicts as Property” provides the theoretical architecture for understanding what the law does when it excludes the concerned person from protective proceedings. Christie’s argument, developed in the context of criminal justice, is applicable here with striking precision.

Christie observes that conflicts — the injuries, wrongs, and disputes that arise between people — belong to their owners: the parties directly affected. When the state appropriates a conflict, the victim becomes a double loser: first to the offender, then to the state that takes the conflict away. Professional systems — lawyers, courts, appointed officials — are structural thieves who take the conflict from those who experienced it and convert it into property of the state. The victim is left without a role except as a witness to their own dispossession.

Age segregation, Christie argues, compounds this dynamic. Older adults, already stripped of the social fabric through which conflicts were historically managed informally, have their conflicts appropriated by formal systems that further isolate them from the community resources that could support resolution. The concerned person is the one party positioned to restore the conflict to its owners — to bring the informal social knowledge, the relational history, and the ecological insight that formal proceedings systematically exclude. And the concerned person is the one party the system systematically removes.

Figure 3. The Double Loser maps Christie’s theoretical framework onto the guardianship context. Stage 1 (red): The First Loss — the older adult loses to the offender through exploitation, abuse, or isolation, producing the original wrong that triggers the need for protective intervention. Christie’s formulation holds that the conflict belongs to its owner; the older adult and those who care for them are its rightful holders. Stage 2 (deeper red): The Second Loss — the state appropriates the conflict through the protective proceeding, installs a court-appointed stranger, and seals the proceeding against independent scrutiny. The professional systems that execute this appropriation — lawyers, courts, appointed guardians — are, in Christie’s terms, structural thieves who take the conflict from those who own it. Stage 3 (purple): What Restitution Requires — recognition of the concerned person as a participant with notice, voice, and the right to seek remedy and review, restoring the conflict to its rightful owners. The concerned person is the one party positioned to accomplish this restoration, and the one party the system systematically excludes. Source: Nils Christie, “Conflicts as Property,” British Journal of Criminology 17, no. 1 (January 1977): 1–15.

Christie’s uses in this essay are three. First, the victim as double loser: the older adult under guardianship loses first to the harm they have suffered — financial exploitation, abuse, neglect — and then again to a system that appropriates the proceeding meant to address that harm, excluding from it the very people who are most invested in their wellbeing. Second, the professional and structural thieves: court-appointed guardians, attorneys, and judges who claim to represent the older adult’s interests while systematically excluding the concerned person who actually knows what those interests are. Third, age segregation as isolation mechanism: the guardianship system does not merely fail to include the concerned person. Its architecture actively removes them, sealing the proceeding against outside scrutiny and stripping the older adult of the social connections through which protective knowledge flows.

The concerned person is the one party who could restore the conflict to its owners — who could bring to the proceeding the knowledge, the relationship, and the accountability that formal systems cannot manufacture. That party’s exclusion is not an administrative convenience. It is, in Christie’s terms, a structural theft.

V. The Inversion’s Legal Expression

The Inversion — developed in Lawful but Awful from Johan Galtung’s analysis of structural violence — describes the legal system’s tendency to grant authority to the party the theory identifies as least effective while denying participation to the party the theory identifies as most effective. The Inversion has a direct legal expression in standing doctrine.

Standing in law means the right to be heard in a proceeding — to have one’s interests recognized as legally cognizable. The concerned person currently has no standing in most protective proceedings despite being: the most effective capable guardian per Marcus Felson’s routine activity theory; the innermost ring of the protective ecology per Urie Bronfenbrenner’s ecological systems model; a secondary victim per zemiology’s expanded harm analysis; and the party whose conflict has been appropriated per Christie. The law grants plenary authority to a court-appointed stranger — the party the theory identifies as the least effective and most dangerous guardian — while denying any participation right to the party the theory identifies as most effective.

Bandes identifies the mechanism that produces this result in criminal proceedings: standing doctrine, reinforced by federalism, separation of powers, and prosecutorial discretion, constructs “formidable hurdles for the crime victim, as well as for others concerned about inconsistent or inadequate enforcement of the criminal laws.” The arcane procedural barriers to victims’ rights are, she argues, inaccessible and little known — which is precisely what makes them effective. The concerned person in a guardianship proceeding faces a version of every barrier Bandes identifies, plus several that are unique to the civil context.

The law’s current position in protective proceedings can be stated simply: the concerned person’s interests are assumed to be adequately represented by the court-appointed guardian, just as the victim’s interests were assumed to be adequately represented by the prosecutor. In both cases, that assumption is sometimes true and often false. In both cases, the assumption functions to insulate the state’s designated representative from accountability to the party whose interests they claim to serve. And in both cases, the remedy is the same: standing for the party whose interests are at stake, independent of the state’s willingness to recognize or defend those interests.

VI. Standing Doctrine and Its Assumptions

To understand why the concerned person lacks standing in protective proceedings, it is necessary to examine the assumptions that shape standing doctrine. Those assumptions are not neutral. They embed a particular model of legal relationships — a binary model in which proceedings have two recognized parties and everyone else is a spectator — that is neither constitutionally required nor theoretically sound.

Bandes traces the architecture of this model in the criminal context. The adversary system assumes only two parties: the government and the defendant. “If additional litigants, such as victims, have a stake in this process, they have no independent vehicle for asserting their interests, so they must rely on the prosecutor to represent adequately their interests for them.” The concern about third-party participation — the fear of the generalized grievance, the aversion to singling out particular people and according them special protections based on relational harm — drives courts to treat the government’s representation of the conflict as coextensive with the representation of all interests worth recognizing.

The guardianship proceeding replicates this structure in civil law. The court appoints a guardian; the guardian claims to represent the older adult’s interests; and on that basis, the concerned person’s independent standing is denied. The court assumes that if the guardian’s representation were inadequate, the court itself — exercising its supervisory authority — would correct the deficiency. The assumption is structurally identical to the assumption in the criminal context: the state, speaking through its designated representative, adequately represents all cognizable interests.

Beloof’s three-obstacle analysis explains why this assumption fails in practice. First, the guardian — like the prosecutor — has discretion to ignore the concerned person’s perspective, and no mechanism compels them to seek it. Second, there is no meaningful remedy for the concerned person when the guardian fails, because the concerned person has no standing to invoke one. Third, even if some remedy theoretically existed, appellate review of guardianship proceedings is discretionary, non-systematic, and practically inaccessible to parties who have no standing in the trial court.

The result is what Beloof calls “illusory rights” — except in the concerned person’s case, there are no rights at all to be illusory. The concerned person in a guardianship proceeding has less recognized legal status than a crime victim in a state that has enacted only the most minimal first-wave protections. They are not even a participant in the formal sense. They are a bystander to a proceeding that directly determines the conditions of life for the person they love.

Ch. Perelman’s philosophical analysis of justice provides the grounding for the reform argument: justice requires that like cases be treated alike. A party who bears harm must be recognized as a party. The concerned person bears harm — direct, documented, zemiologically cognizable harm. The law’s refusal to recognize that harm as legally cognizable is not a neutral application of standing doctrine. It is a decision, dressed in procedural language, that the concerned person does not count. That decision is not legally required. It is a choice, and it can be changed.

VII. The Barrier: Rooker-Feldman and the Federal Forum

The concerned person’s path to federal redress is blocked by the Rooker-Feldman doctrine, a jurisdictional rule that prevents lower federal courts from reviewing state court decisions. The doctrine takes its name from two Supreme Court cases — Rooker v. Fidelity Trust Co. (1923) and District of Columbia Court of Appeals v. Feldman (1983) — and has been used to dismiss hundreds of cases in which litigants sought federal review of state court proceedings.

For advocates challenging guardianship proceedings — proceedings that are exclusive creatures of state court jurisdiction — Rooker-Feldman is a near-absolute bar to federal relief. Rick Black of the Center for Elder Abuse Reform has documented five federal civil RICO cases challenging guardianship proceedings, all dismissed on Rooker-Feldman grounds. The pattern is consistent: a family member or concerned person alleges that a guardianship was fraudulently obtained or that the guardian is exploiting the older adult; they seek federal relief; and the case is dismissed because it is treated as an impermissible collateral attack on a state court judgment.

Bandes’s analysis of Rooker-Feldman’s jurisdictional status is essential here. She argues that the doctrine’s heavy use is disproportionate to its legal justification — that it has been used to dismiss cases far beyond the narrow set of situations in which a litigant is genuinely asking a federal court to serve as an appellate court over a state court decision. When courts apply Rooker-Feldman to dismiss cases in which a party is not asking for review of the state court’s judgment but rather seeking to vindicate independent federal rights that were violated in connection with state court proceedings, the doctrine is being deployed as what Bandes calls a “jurisdictional shrug” — a device that allows courts to clear their dockets without taking responsibility for the substantive consequences.

The Supreme Court has narrowed Rooker-Feldman significantly in recent years. In Exxon Mobil Corp. v. Saudi Basic Industries Corp. (2005), the Court held that the doctrine applies only to cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the federal proceeding commenced. Lance v. Dennis (2006) further clarified that the doctrine does not apply to plaintiffs who were not parties to the state court proceeding. These narrowing decisions open potential avenues for concerned persons who were never parties to the guardianship proceeding — which is, by definition, the position of most concerned persons, since they have no standing in those proceedings to begin with.

Most significantly, the Supreme Court heard argument in 2026 in T.M. v. University of Maryland Medical System, a case that asks whether Rooker-Feldman can be triggered by a state court decision that remains subject to further review. The case involves an involuntary commitment — a protective civil proceeding with direct structural parallels to guardianship — and the outcome may reshape the doctrine’s application in precisely the context where it has most severely limited concerned persons’ access to federal redress. This case warrants close attention as the Standing essay’s reform arguments are developed.

The Rooker-Feldman doctrine is not the only constitutional barrier. Younger abstention, prosecutorial immunity’s civil analogs, and the Full Faith and Credit Act all operate to insulate state court protective proceedings from federal review. Together, they create what Bandes aptly calls “jurisdictional helplessness” — courts announcing that they have no choice but to dismiss, while the substantive consequences of that dismissal accumulate for the older adults and concerned persons whose cases are being cleared from the docket.

The appropriate response to these barriers is legislative, not judicial. Congress created the CVRA to give crime victims standing in federal proceedings. Congress can create analogous standing provisions for concerned persons in protective proceedings. The Rooker-Feldman doctrine does not bar legislative action. It bars only judicial review of state court decisions. A federal statute that creates new rights for concerned persons — rights that arise independently of any state court judgment — would be entirely consistent with the doctrine’s scope as the Supreme Court has now defined it.

VIII. The UGCOPAA Opening

The Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA), adopted by the Uniform Law Commission in 2017 and now enacted in nineteen states, is the most significant recent development in guardianship law. Nina Kohn and David English — the Act’s Reporter and Chair — describe UGCOPAA as designed not merely to require but to incentivize limited guardianships over full ones, and protective arrangements over long-term court appointments. The Act represents a genuine advance in the protection of respondents’ rights and the promotion of less restrictive alternatives to plenary guardianship.

But UGCOPAA also contains the opening the Standing essay is looking for.

The Act’s predecessors — the 1982 Uniform Guardianship and Protective Proceedings Act and the 1997 revision — both contained provisions allowing a court to limit guardian powers “on its own motion or on appropriate petition or motion of the incapacitated person or other interested person.” The phrase “other interested person” has never been uniformly defined across state law. Kohn and English document the variation: in Texas, adult children have standing to petition for modification or termination of guardianship; in Florida, the broader standard of “interested person” applies. No uniform rule governs who qualifies.

UGCOPAA itself requires petitions to identify “any person known to have routinely assisted the respondent with decision making during the six months immediately before the filing of the petition.” Those persons are entitled to receive notice of the hearing. This is the closest current law comes to recognizing the concerned person — not as a party with standing, but as a notice recipient. The gap between notice entitlement and participation rights is the essay’s reform target made statutory: UGCOPAA has already acknowledged that these persons exist and matter. It has not yet granted them the standing to act on that acknowledgment.

Figure 4. The Recognition Ladder maps the law’s incremental movement toward recognizing the concerned person, from complete invisibility to the reform target of full participation rights. Step 1 (No Recognition): the Concerned Person is invisible to the proceeding — no notice, no role, no standing. This remains the current default in many jurisdictions. Step 2 (Notice Entitlement): UGCOPAA (2017), now enacted in nineteen states, requires that persons who routinely assisted the respondent in the six months before the petition be identified and given notice of the hearing. Acknowledged, but not empowered. Step 3 (Interested Person Standard): some states — Florida and Texas among them — grant “interested persons” limited standing to petition for modification or termination of a guardianship. Partial, inconsistent, not uniform. Step 4 (Family Member Provision — Criminal Model): under CVRA, 18 U.S.C. § 3771(e) (2004), when a crime victim is incapacitated, family members and other suitable persons may assume the victim’s full rights in federal criminal proceedings. Full recognition in criminal proceedings; the gap to civil proceedings remains. Step 5 (Concerned Person Participation Rights — The Reform Target): full participation rights in civil protective proceedings, including notice, presence, voice, the right to present information, to object, to petition the court, to obtain remedy, and to seek review. The step the law has not yet taken. Standing + Remedy + Review. Not constitutionally barred. Sources: UGCOPAA (2017); CVRA, 18 U.S.C. § 3771 (2004); Beloof (2005); Kohn and English (2022).

Kohn and English’s empirical data on the persistence of full guardianship is sobering in this context. Despite decades of statutory reform directing courts to prefer limited guardianships, at least 84 percent of guardianships in the District of Columbia between 2015 and 2017 were full and permanent. In Iowa, a 2014 survey found limited guardianships comprising only one percent of adult guardianship cases. The conclusion Kohn and English draw — that it is not sufficient for the law to state a preference for less restrictive alternatives; the system must actively incentivize their use — is precisely the argument Beloof makes about victims’ rights. Rules without enforcement are aspirations. Aspirations without standing are theater.

The concerned person is the most natural source of the information and advocacy that would push courts toward less restrictive alternatives. They are the parties who know the respondent’s actual capabilities, who can speak to functional assessments of what the person can and cannot do with support, who can propose alternatives to plenary guardianship that court-appointed visitors and attorneys — strangers to the respondent — cannot credibly advance. Giving the concerned person standing to participate in the proceeding is not merely a matter of fairness to the concerned person. It is a mechanism for improving the quality of the court’s decision-making — for giving the court access to exactly the kind of information it needs to fulfill the least restrictive alternative mandate that UGCOPAA directs it to apply.

IX. The Service-to-Standing Gap

The Victims of Crime Act (VOCA), enacted in 1984, established the Crime Victims Fund and has since become the primary federal funding source for victim services across the country. VOCA explicitly names elder abuse as a priority area. VOCA-funded services reach older adults who have been financially exploited, physically abused, and neglected. In some jurisdictions, VOCA funding supports services to concerned persons as secondary victims — family members and close associates who have themselves been harmed by the exploitation of an older adult they love and tried to protect.

VOCA established the funding. The Crime Victims’ Rights Act of 2004 established the model.

Congress has already recognized, in federal law, that the incapacity of a primary victim does not extinguish the rights of those who care for and about that person. The Crime Victims’ Rights Act of 2004, at 18 U.S.C. § 3771(e), provides that when a crime victim is under 18, incompetent, incapacitated, or deceased, family members and other suitable persons may assume the victim's rights in federal criminal proceedings. The mechanism exists. It has been tested. It works.

The gap is not architectural. It is jurisdictional. The CVRA’s transfer of rights upon incapacity applies to federal criminal proceedings. It does not apply to the civil protective proceedings — guardianship, conservatorship, adult protective services intervention — where the incapacity of the older adult is precisely the condition that triggers the proceeding in the first place. In the domain where incapacity is most consequential, where the stakes are total, where the older adult has lost the legal capacity to speak for themselves, the law provides the concerned person nothing.

That asymmetry is not constitutionally required. It is not historically inevitable. It is a legislative choice that has not yet been made — and that the elder justice field has not yet demanded loudly enough. The architecture exists. Congress built it when it chose to. The reform target for the Standing essay is not the invention of a new framework. It is the extension of an existing one into the domain where it is most needed.

CEASe represents the field’s closest current approximation of formal recognition for concerned persons. Through VOCA-funded services, CEASe provides support to concerned persons as secondary victims — acknowledging in practice what the law has not yet acknowledged in doctrine: that these individuals bear real harm, have genuine interests, and deserve recognition and support. This is the proof of concept the Standing essay is pointing toward. If VOCA funding already reaches concerned persons as secondary victims, standing doctrine can recognize them as parties with cognizable interests.

Figure 5. The Standing Gap in the context of elder financial exploitation sharpens the essay’s reform argument at its most concrete. The older adult — primary victim — loses assets, financial autonomy, and often decision-making capacity, frequently without knowledge or meaningful consent. The concerned person — secondary victim — is excluded from financial information, unable to intervene, and left bearing both grief and the practical consequences of the estate’s depletion. Family and community suffer tertiary harm as inheritance is extinguished, family relationships are weaponized or destroyed, and community trust in protective systems erodes. Society absorbs the structural cost: AARP and Gunther (2023) estimate $28.3 billion in annual elder financial exploitation losses; nine in ten cases go unreported; public systems absorb costs that private exploitation created. Against this, the right column reflects who holds standing: the state (Adult Protective Services investigates, but with narrow evidentiary authority and no automatic standing in civil proceedings); the court-appointed fiduciary (who, in predatory cases, is the instrument of the exploitation — accountable only to a court that receives their own reports); the court (which supervises accounts and inventories but receives only what the fiduciary files); and, if the case results in criminal charges, the perpetrator, who holds full procedural standing as a defendant — with counsel, discovery rights, and right of appeal — while the concerned person who tried to stop them has none. The bottom bar’s formulation names the outcome: the person who stole the estate has more standing than the person who tried to stop them. Not constitutionally required. Not historically inevitable. A choice the law can change. 

But the gap between service access and legal standing is wide, and it matters. A concerned person who receives counseling and support services through a CEASe-affiliated program has no more standing in a guardianship proceeding than a concerned person who receives nothing. Services address secondary victimization after the fact. Standing addresses it at the source — in the proceeding itself, where the decisions that determine the older adult’s fate are made. The service-to-standing gap is the exact distance between acknowledging that concerned persons matter and giving them the legal tools to act on that acknowledgment.

The reform the essay is arguing for is not unprecedented. It is already partially accomplished in the criminal context. It requires extension, not invention.

X. What Real Standing Would Require

Beloof’s third-wave framework — standing, remedy, and review — provides the template for what meaningful recognition of the concerned person’s interests would require in protective proceedings. The three elements are inseparable. Rights without standing cannot be invoked. Standing without remedy is theater. Remedy without review is subject to the same institutional discretion that produced the problem in the first place.

Figure 6. From Illusory to Real maps Beloof’s three-element framework onto the concerned person’s situation in civil protective proceedings. The three column headers — Standing, Remedy, and Review — represent the right to be heard, the right to a consequence, and the right to accountability, respectively. Row 1 (purple): what each element means for the concerned person. Standing means the right to be notified, to be present, to present information, to object, and to petition the court. Remedy means the right to seek modification or termination of a failing arrangement, to challenge a fraudulent order, and to obtain a meaningful consequence for violations. Review means non-discretionary appellate review of violations, so that trial courts are not the final arbiters of the concerned person’s rights. Row 2 (red): what the absence of each element produces. No standing means the concerned person cannot enter the proceeding that determines the older adult’s fate. No remedy means that rights without consequence are aspirations — the violation proceeds without correction. No accountability means each trial court becomes its own final arbiter, with no check, no doctrine, no appeal. Row 3 (gray): the model that already exists in criminal proceedings. The CVRA, 18 U.S.C. § 3771 (2004), enacts victim standing in federal criminal proceedings. Mandatory restitution and the right to void proceedings on violation provide remedy. Non-discretionary review via writ of mandamus — established in Beloof (2005) — provides accountability. The bottom bar’s formulation is the essay’s prescriptive core: rights without standing are aspirations; standing without remedy is theater; remedy without review is discretion in disguise. Sources: Beloof, “The Third Wave of Crime Victims’ Rights,” BYU Law Review (2005); CVRA, 18 U.S.C. § 3771 (2004).