Promising Elder Justice

I. Introduction

The Federal Elder Justice Action Plan represents a meaningful step forward in the federal commitment to protecting older Americans. The mission statement’s explicit grounding in rights — “upholding the rights of older adults, including the right to make decisions and be free from exploitation” — is notable and welcome. So too is the plan’s recognition of the need for coordinated federal action, cross-disciplinary training, and evidence-based decision-making. These are not small things.

This comment is offered in that spirit. It identifies three structural gaps that, if unaddressed, will limit the plan’s capacity to fulfill its own stated mission: the absence of guardianship and conservatorship as a domain of concern; the invisibility of Concerned Persons — the family members and close associates who most often detect abuse but lack legal standing to act; and the reduction of prevention to awareness rather than its grounding in rights. Each gap is identified below, with specific recommendations.

II. What the Plan Gets Right

Before identifying gaps, it is worth naming what this plan does well — not as a courtesy, but because these strengths provide the foundation on which the missing elements should be built.

Rights language in the mission.

The inclusion of “the right to make decisions” as an explicit federal commitment is significant. Elder justice policy has long defaulted to safety and protection framing, which, however well-intentioned, can occlude autonomy. A plan that names decisional rights at the outset is positioned to do more than protect older adults from harm — it is positioned to protect their agency.

Fiduciary oversight.

The inclusion of “improve oversight of fiduciaries and Federal benefits” under Priority 1 is an important and underappreciated addition. Court-appointed fiduciaries — guardians, conservators, representative payees — are among the least-scrutinized actors in the elder justice landscape. Naming fiduciary oversight as a federal objective opens a door that has been closed for too long.

Cross-disciplinary coordination.

The emphasis on multidisciplinary teams, cross-agency coordination, and the “no wrong door” approach reflects hard-won learning from the field. Systems that force older adults and their families to navigate fragmented pathways add injury to injury. The plan’s commitment to integration is well-founded.

III. Gap One: Guardianship Is Absent

The plan does not mention guardianship or conservatorship. For a federal elder justice action plan that addresses abuse, neglect, exploitation, fiduciary oversight, and the right to make decisions, this is not a minor omission. It is a structural gap.

Court-ordered guardianship is among the most consequential and least examined vectors of elder rights deprivation in the United States. A guardian holds plenary authority over the person and estate of the individual subject to guardianship — authority that, once granted, is rarely revisited. The older adult loses the right to make decisions about where to live, how to spend their money, whom to see, and what medical care to accept. These are not hypothetical losses. They are legal, court-ordered, and in many cases permanent.

Guardianship abuse — which includes financial exploitation by court-appointed guardians, isolation of persons subject to guardianship from family, and the systematic suppression of restoration petitions — is documented, widespread, and largely invisible to the systems this plan proposes to strengthen. Adult Protective Services is largely powerless to intervene once a guardianship is in place — the court order that was meant to protect becomes the barrier that prevents protection.

The accountability failure begins with a fact that is itself an indictment: there is no reliable national count of the number of persons subject to guardianship, nor of the guardians who hold authority over them. Estimates range from one to three million Americans under guardianship, but no federal agency tracks these numbers systematically. We are being asked to evaluate a system whose dimensions we cannot measure, whose actors are not registered in any unified national database, and whose outcomes — restoration, death, abuse, exploitation — are recorded, if at all, only at the county probate level. A system that cannot count itself cannot be held accountable.

Probate courts are neither funded nor designed for ongoing oversight — and that closure is compounded at the appellate level. Guardianship proceedings typically produce sparse records — findings are conclusory, evidence is incompletely transcribed, and the standards of review applied on appeal are highly deferential to the original court. 

The practical consequence is that appellate review, the constitutional mechanism designed to catch and correct trial court error, routinely cannot function in guardianship cases. A person subject to guardianship who believes their rights were violated faces not only the burden of mounting an appeal with limited resources and, frequently, no independent counsel — they face a record that was never built to sustain meaningful review. The closed system is not merely a feature of probate court culture. It is structurally reproduced at every level of the judicial hierarchy. 

Federal jurisdictional doctrine has given the traditional deference to state guardianship law a powerful, if unintended, reinforcement. The Rooker-Feldman doctrine — which bars federal district courts from reviewing state court judgments — has functioned in practice as a structural shield for guardianship abuse. Civil RICO claims alleging coordinated exploitation under color of guardianship orders have been dismissed not on their merits but on jurisdictional grounds, because the federal court would be required to look behind a state court judgment to evaluate them. The conduct most likely to satisfy federal racketeering standards is thus the conduct most insulated from federal civil remedy. This is not an argument for displacing state probate jurisdiction. It is an argument that federal policy must affirmatively fill the accountability vacuum that jurisdictional doctrine leaves behind.

Guardianship does not stop at state lines. 

Persons subject to guardianship are relocated across state boundaries, often without notice to family and sometimes without court approval — in patterns that bear the hallmarks of interstate trafficking in vulnerable adults. Federal benefits — Social Security, Medicare, Medicaid, veterans’ benefits — flow directly to guardians and conservators who are, in many cases, subject to no meaningful oversight of how those funds are used. And at its core, guardianship is a proceeding in which the state strips a citizen of constitutionally protected liberties: the right to make decisions about one’s own person, property, and relationships. These are not state interests dressed in local procedural clothing. They are federal constitutional interests that happen to be adjudicated in probate courts. The federal government has not only the authority but the obligation to engage them.

The plan’s stated goal of reducing “fraud, abuse, and neglect that threaten the safety and financial security of older Americans” cannot be met while guardianship remains outside the frame. A federal plan that strengthens enforcement against transnational fraud while leaving the courthouse door open to court-sanctioned exploitation is incomplete by definition.

Recommendations:

1. 1. Add guardianship and conservatorship reform as an explicit domain within Priority 2 (Prevention and Reporting) and Priority 3 (Enforcement and Recovery).

   2. Direct the Elder Justice Coordinating Council to assess the adequacy of existing federal mechanisms for identifying and responding to guardianship abuse, including the role of APS, the courts, and federally funded legal services.

   3. Incorporate supported decision-making and least-restrictive alternatives to guardianship as prevention strategies, consistent with the plan’s stated commitment to independence and decisional rights.

   4. Establish minimum federal standards for guardianship oversight, including periodic court review, independent counsel for proposed persons subject to guardianship (respondents), and meaningful restoration procedures.

IV. Gap Two: Concerned Persons Are Invisible

The plan’s architecture of response is built around institutions: APS, law enforcement, financial institutions, hotlines, multidisciplinary teams, legal services. This is appropriate. But it leaves out the human being who most often first detects elder abuse — the family member, close friend, or trusted associate who notices that something is wrong and attempts to intervene.

These individuals — known in elder justice practice as Concerned Persons, a term first developed by the Center for Elder Abuse Solutions (CEASe) Helpline, based in New York — occupy a structurally paradoxical position. They are often the earliest and most knowledgeable witnesses to abuse. They are typically the ones who call hotlines, contact attorneys, and attempt to access the systems this plan proposes to strengthen. And yet they have no legal standing in the proceedings that determine the outcome. A Concerned Person cannot compel an APS investigation, cannot petition for guardianship review without court approval, and — in many jurisdictions — cannot even obtain information about an investigation they triggered.

The plan's Priority 1 and Priority 2 objectives both implicitly rely on Concerned Persons as the first link in the reporting chain. But the plan offers them nothing in return — no standing, no feedback, no protection from retaliation by perpetrators who may hold legal authority over the victim.

This is not a theoretical problem. In cases of family-perpetrated financial exploitation — which research consistently identifies as underreported relative to stranger fraud, and which is more complex to investigate precisely because it occurs within relationships of trust — the Concerned Person is frequently the only witness with direct knowledge of the relationship dynamics. Excluding them is not merely an oversight. It is a structural choice that weakens every other element of the plan.

Recommendations:

1. 1. 1. Recognize Concerned Persons explicitly in the plan’s framework as a distinct category of actor — neither victim, nor perpetrator, nor professional responder — with a defined role in the reporting and response architecture.

      2. Direct relevant agencies to assess the legal and procedural barriers that Concerned Persons face in reporting, accessing information, and participating in proceedings, and to identify mechanisms for addressing those barriers.

      3. Include Concerned Person engagement as a component of cross-disciplinary training under Priority 2.

V. Gap Three: Prevention Requires Rights, Not Just Awareness

The plan’s mission statement names rights. Its prevention strategy does not operationalize them. Priority 2’s prevention objectives reduce to public awareness campaigns, cross-disciplinary training, data systems, and research. These are valuable. They are not sufficient.

Prevention in elder justice has too long been synonymous with awareness — as if the primary barrier to safety is that older adults, families, and professionals do not know enough. The research does not support this framing. Elder financial exploitation persists not because of ignorance but because of structural conditions: isolation, dependency, the absence of legal standing for those who would intervene, and the presence of legal authority in the hands of those who exploit it. Awareness campaigns do not address any of these conditions.

Rights-based prevention addresses them directly. When an older adult has legally enforceable autonomy protections — including the right to supported decision-making, the right to independent counsel before a guardian is appointed, and the right to a meaningful review process — the structural conditions that enable exploitation are disrupted at the source. When a Concerned Person has standing to trigger a review, isolation as a mechanism of control becomes harder to maintain. When fiduciary oversight is robust, the exploitation of court-granted authority becomes riskier.

The plan’s mission commits to ensuring older Americans can “live with dignity, independence, and well-being.” Dignity and independence are not produced by awareness. They are produced by rights that are legally enforceable, institutionally supported, and genuinely available to the people who need them.

Recommendations:

1. 1. Reframe the prevention priority to include rights-based structural interventions alongside awareness and training — specifically, supported decision-making, alternatives to guardianship, and legal empowerment for Concerned Persons and older adults.

   2. Direct relevant agencies to assess the gap between the plan’s rights commitments in the mission statement and the mechanisms available to enforce those rights at the state and local level.

   3. Incorporate the CRPD framework for supported decision-making as a reference standard for federal policy development.

VI. Conclusion

The Federal Elder Justice Action Plan is a serious document — its rights framing, its attention to fiduciary oversight, and its emphasis on coordination are real achievements that deserve recognition.

The gaps identified in this comment are not peripheral. Guardianship, Concerned Persons, and rights-based prevention are not supplementary considerations — they are central to the problem the plan is trying to solve. A plan that addresses stranger fraud with rigor while leaving guardianship unexamined, that builds a reporting architecture while ignoring those who do the reporting, and that commits to rights in its mission while omitting them from its objectives, will not fulfill its own promise.

The promise is the right one: that older Americans can live with dignity, independence, and well-being. Meeting it requires not only stronger systems but a clearer reckoning with where those systems currently fail.

That reckoning has a natural partner. The disability rights movement has spent decades developing the legal and philosophical architecture for supported decision-making, autonomy, and rights-based intervention — frameworks that elder justice policy has been slow to incorporate. ACL’s mandate spans both aging and disability, and the structural conditions this comment addresses are shared ones. The partnership between these two movements in advancing rights-based frameworks is not merely available. At this moment, it is necessary.