Differential Association and the Guardianship Pipeline 

An alarming number of guardianship abuse and exploitation cases are not merely enabled by the state. They are, in a meaningful and legally significant sense, state-sanctioned — whether by commission, omission, or collusion, and sometimes by all three.

Commission extends beyond the outright criminal acts of an individual guardian to include aiding and abetting — the active participation of lawyers, evaluators, and court officers in conduct they know, or should know, to be harmful. Omission reaches as far as California’s elder abuse statutes, which extend liability to any person or entity that knew or should have known that conduct was likely to be harmful to an elder. In guardianship proceedings, the burden of that knowledge falls entirely on the actors in the court system — not on the person subject to guardianship, whom the court has already deemed legally incapacitated. The state, having stripped the person of rights and responsibility alike, has assumed both. The obligations that follow — many of them affirmed under oath — belong to the system that created them. When the system fails to meet them, that failure is not incidental. It is actionable.

Collusion names the most serious dimension of this problem: the coordination of actors within the court system toward shared criminal ends. In federal law, that coordination has a name: racketeering. 18 U.S. Code § 1961 defines racketeering activity to include extortion, money laundering, wire fraud, and obstruction of justice — each of which can be present in a guardianship proceeding where assets are systematically extracted, records are manipulated, and the person subject to guardianship is isolated from family members who might otherwise intervene.

Practitioners in Palm Beach County have coined a term that captures the specificity of this form of exploitation with unusual precision: Silver Collar Crimes — financially motivated crimes intentionally perpetrated against elder persons with diminished cognition, using the court system or legal documents as both the mechanism and the cover. That the term has emerged from within the professional guardianship community is itself significant: it suggests that the problem is being named from the inside as well as the outside, and that the field is beginning — however gradually — to confront what its own structures have enabled. 

A common defense of guardianship abuse — offered by perpetrators, their attorneys, and occasionally by courts — is that the conduct, however harmful, lacks the criminal intent that distinguishes crime from negligence. John M. Ivancevich and colleagues (2003, 118) explain:

“[S]ome argue that these [white-collar] crimes differ from and are somehow less serious or dangerous than common crimes because the perpetrators usually lack mens rea — criminal intent.” 

Ivancevich identified this as a false premise and a leading indicator of white-collar crime specifically. But white-collar criminal intent is not absent. It is learned. It is acquired gradually, through repeated association with others who have already normalized the behavior, rationalized the harm, and calculated the risk. Pertinent to guardianship, that learning does not happen in corporate boardrooms. It happens in state court systems — in probate courts where the same actors appear before the same judges in case after case, refining their methods and expanding their confidence with each proceeding that goes unchallenged.

The absence of obvious malice is not evidence of the absence of crime. It is evidence of how effectively the crime has been normalized.

The Mechanism: Differential Association

How does this happen? How does a court system authorized by the state to protect vulnerable adults become, in some cases, the instrument of their exploitation? Edwin Sutherland — whose 1940 paper on white-collar crime remains the field's foundational text — provides the most precise available answer: through differential association.

Sutherland argued that white-collar criminality, like all systematic criminality, is learned — and that it is learned in direct or indirect association with those who already practice the behavior. What distinguishes white-collar crime from street crime is not the absence of criminal intent but the location in which that intent is formed and normalized. As Sutherland (1940, 11) observed with characteristic precision: 

“The inventive geniuses for the lower class criminals are generally professional criminals, while the inventive geniuses for many kinds of white-collar crime are generally lawyers.” 

In guardianship abuse, the learning does not happen in corporate boardrooms. It happens in probate courts — in ex parte hearings, in chambers conversations, in the professional networks through which guardians, attorneys, evaluators, and court officers interact repeatedly over years and decades.

Differential association explains what the public record documents: that guardianship abuse tends to be systematic rather than opportunistic, that it involves coordinated actors rather than lone perpetrators, and that it persists across cases, courts, and jurisdictions in ways that suggest learned behavior rather than individual moral failure. 

Criminal behaviors are learned by interacting with others in frequent and intimate groups, acquiring specialized knowledge of how laws and trust can be exploited to minimize risk and maximize reward. In a probate court where the same lawyers, guardians, and evaluators appear before the same judges in case after case, the conditions for exactly that kind of learning are structurally present.

Probate courts, in this analysis, are not merely the venue for guardianship abuse. They are, in some cases, its incubator — providing the environment in which deviant behavior is normalized, refined, and scaled. 

Donald Cressy (1969) observed that organized criminal enterprises succeed in part by “infiltrating legitimate business” — using the authority and cover of lawful institutions to conduct unlawful activity. Probate courts provide exactly that kind of cover. Whether the same dynamic operates in equity courts and other civil proceedings is a question the field has not yet fully asked — but the structural conditions that make probate courts favorable environments for learned deviant behavior are not unique to probate. They are features of any judicial system that combines broad discretion, minimal oversight, control over assets, and a population of vulnerable litigants who are poorly positioned to challenge what is done to them.

Impunity: Power Without Accountability

Differential association does more than explain how guardianship abuse is learned. It explains how it persists. When the same actors operate repeatedly within the same system, acquiring the same specialized knowledge of how laws and trust can be exploited, the result is not merely criminality — it is impunity. The Eurasia Group, in its 2022 Atlas of Impunity, defines impunity precisely: the exercise of power without accountability, which becomes, in its starkest form, the commission of crimes without punishment. The Atlas measures impunity across five independent indicators in societies around the world. The United States is not among the countries assessed — but state-sanctioned guardianship abuse maps with uncomfortable precision onto four of those five indicators.

Unaccountable governance: probate courts operating with broad discretion, minimal appellate review, and no national data collection. Human rights abuse: the removal of legal personhood from individuals without the procedural rigor that right demands. Economic exploitation: the systematic extraction of assets through legally authorized mechanisms — fees, vendor payments, estate sales — conducted under court supervision. Conflict and violence: the isolation of persons subject to guardianship from family members who might intervene, and the legal weaponization of the proceeding against those who challenge it.

The Atlas was designed to measure impunity in nation-states. It fits the guardianship system with a precision its authors did not intend — and that the elder justice field has not yet fully reckoned with.

The Problem of Invisibility

What makes this analysis difficult to act on is the problem that Henry Pontell identified (2016, 51) as the defining characteristic of white-collar crime: 

“White-collar crime to a considerable degree suffers not only from trivialization but also to a great extent from a failure of recognition, from invisibility…” 

Guardianship abuse is invisible in multiple senses. The proceedings are often sealed. The person subject to guardianship is frequently isolated from the family members who might report what they observe. The financial exploitation is conducted through legally authorized mechanisms — guardianship fees, vendor payments, asset sales — that look, from the outside, like legitimate professional activity. And the academic literature on white-collar crime has, until recently, focused on corporate and financial crime while largely overlooking the probate court as a site of organized exploitation. 

The academic literature reflects this invisibility in its own way. Policastro, Gaine, and Payne (2013) have noted that scholars disagree about what offenses should be classified as white-collar and which offenders should be identified as white-collar criminals — a definitional uncertainty that has consequences for how the problem is studied and addressed. Their own analysis of white-collar offenses against older adults focuses on home health workers, telemarketers, and home repair persons. Probate court actors — lawyers, professional guardians, evaluating clinicians, and court officers — do not appear in their taxonomy. That omission is not a criticism of their scholarship. It is a measure of how thoroughly the court system has been exempted from the analytical frameworks that might otherwise hold it accountable.

Guardianship abuse is not a cottage industry. It is, as criminologist Dwight Smith (1970, 358) observed of organized crime more broadly, an enterprise that “takes place across a spectrum including legal and criminal businesses.” At times, it is a joint enterprise (Cornell) in the formal legal sense — a coordinated undertaking among multiple actors toward a shared criminal purpose — mindful that, as Braithwaite (1985, 7) observed, 

“…modus operandi literature demonstrates the existence of consistent pressures to pass blame for white collar crime downward in the class structure.”  

At times, guardianship abuse and exploitation is a joint enterprise (Cornell), mindful that the “…modus operandi literature demonstrates the existence of consistent pressures to pass blame for white collar crime downward in the class structure” (Braithwaite 1985, 7).

The modus operandi literature calls it passing blame downward. Federal law calls it conspiracy. The effect is the same: accountability distributed so broadly that the system protects itself by ensuring that no one within it can be held responsible for what all of them, together, have done.

The Emerging Response

The institutional infrastructure for addressing guardianship abuse as white-collar crime is beginning to take shape — slowly, but with increasing seriousness.

The Division of White-Collar and Corporate Crime, established within the American Society of Criminology in 2017. The division launched the Journal of White Collar and Corporate Crime, in 2020. In its 2020 inaugural issue in 2020, Anne Alvesalo-Kuusi and Gregg Barak (2019, 4) declared that it:

“strives to advance the knowledge of the fields of trusted criminals, to enhance empirical and theoretical investigations into the crimes of the powerful, and to reduce the experienced harms and victimization of ordinary people by influencing and supporting new social interventions through legally oriented policy change and critique.”

The division was created by the White Collar Crime Research Consortium (WCCRC, history), which was in turn developed under the sponsorship of the National White Collar Crime Center (NW3C). The center, in partnership with the Department of Justice, has developed the Elder Abuse Guide for Law Enforcement (EAGLE) free online training in partnership with The National Center on Elder Abuse, which has helped expand partnerships between white-collar crime investigators and elder justice advocates nationwide. For example, NCEA presented at the 2023 National Sheriffs’ Association Conference, in part to gain a “glimpse at the newly refreshed EAGLE training with the National White Collar Crimes Center.” (February 4, 2023)

These are promising developments. But they will not be sufficient until the probate court is named explicitly as a site of white-collar crime — until the differential association that operates within it is recognized, documented, and disrupted. Sutherland's conclusion remains as precise today as it was in 1940: 

Differential association culminates in crime because the community is not organized solidly against that behavior.” 

The clarion call of this section — and of this publication — is to organize that community. Our goal will be no less than to “dissolve social spaces in which predominantly people with deviant motives and patterns of action live.” (Wickert 2022)

Image: Aquinnah Beach, Martha's Vineyard, MA