The Missing Numbers

In guardianship, the numbers — or lack of numbers — numb us.

We know, with precision, how many Americans are incarcerated. The Bureau of Justice Statistics tracked 1,230,100 individuals in adult correctional facilities on December 31, 2022. We know where they are, how long they have been there, and what rights they retain. We do not know how many Americans are subject to guardianship. We do not know how many guardians are currently serving. We do not know how many persons under guardianship have had their rights restored, how many have died while under the control of a guardian, or how many are being exploited by the very person appointed to protect them.

The comparison is not incidental. In 1987, Congressman Claude Pepper told a congressional hearing on guardianship abuse what has not changed in the nearly four decades since:

"The typical ward has fewer rights than the typical convicted felon… By appointing a guardian, the court entrusts to someone else the power to choose where they will live, what medical treatment they will get and, in rare cases, when they will die. In one short sentence, it is the most punitive civil penalty that can be levied against an American citizen, with the exception of the death penalty."

If the typical person subject to guardianship has fewer rights than the typical convicted felon, the least the system owes them is the same basic accounting. It does not provide it.

What We Do Not Know

The figure most frequently cited — 1.3 million Americans subject to guardianship — is not a count. It is a guess. David Godfrey, one of the field’s most authoritative voices on guardianship data, is direct about this: “that is the same guess on how many guardianships that we have been hearing for 30 years.” The probable figure is considerably higher. As Godfrey has concluded (2022, 97),

“…the bottom line is that in nearly every state there is no reliable data on how many adults have a guardian, what the needs of the person are and how those needs are being met” 

The Government Accountability Office has documented this gap in at least four separate reports spanning two decades — in 2004, 2006, 2011, and most recently in 2016, when it found that, 

“the extent of elder abuse by guardians nationally is unknown due to limited data on the numbers of guardians serving older adults, older adults in guardianships, and cases of elder abuse by a guardian.” 

The National Center for State Courts has observed that “[t]he collection of reliable data is besieged by a number of problems. In Maine, Samantha Hogan of The Maine Monitor reports “[p]robate courts only recently began keeping track of guardianships. Several do not know how many people are under guardianship in their county, or if these adults are alive or dead,” 

The gap is not confined to any single state or region. It is national, structural, and persistent. 

What the Absence of Data Does

The lack of reliable guardianship data is not merely an inconvenience for researchers. It is a condition of the system’s survival. It conceals abuse and exploitation. It obscures oversight. It discourages reporting. It obstructs investigations. It conceals trends. It inhibits research and evaluation. It hinders policy development and legislation. It impedes resource allocation. It undermines public trust. And it places older adults at risk. 

The absence of data is not accidental. It is a structural feature of a system organized, in too many jurisdictions, to resist accountability. Close connections among actors in the court system — lawyers, guardians, evaluators, judges — who appear repeatedly before each other in case after case create the conditions described in Differential Association and the Guardianship Pipeline: learned behavior, normalized exploitation, and impunity that distributes accountability so broadly that no single actor can be held responsible for the whole. Data collection would interrupt that impunity. Its absence sustains it.

The Conservator Accountability Project named the circular dependency precisely: most state courts lack the capacity to develop and implement broad-scale changes, and antiquated systems create struggles with even simple tasks, such as documenting the number of active conservatorship cases and tracking compliance with reporting requirements. Without this data, technology solutions and targeted reform cannot be applied. 

In 2024, a peer-reviewed study published in the Journal of Aging and Social Policy — Seize the Data: An Analysis of Guardianship Annual Reports — examined annual guardianship reporting procedures in 43 states. Using the National Guardianship Association’s 25 Standards of Practice as a benchmark, the authors found significant gaps in what annual report forms require guardians to disclose. Most states mandate annual reporting. Most states’ annual reports, when filed at all, are insufficient to assess whether the person under guardianship is safe, well-served, exploited, or dead.

The study's conclusions point toward a necessary next step: a comprehensive annual report template, aligned with the National Guardianship Association's Standards of Practice and written at an accessible reading level, that could serve as a model for all states. The proposal is constructive and the template work is genuinely needed.

But the conclusion quietly displaces a harder question. Annual reports filed by guardians to the courts that appointed them are self-reporting — a system in which the monitored party defines the monitoring. The National Guardianship Association, whose Standards of Practice anchor the proposed template, is a professional membership organization whose primary obligation runs to its members rather than to the persons under their care. And a better reporting form, however well-designed, does not address the enforcement gap: what happens when reports are not filed, are filed late, or are filed with false or incomplete information. The states have the responsibility, the enforcement power, and the authority to sanction non-compliant guardians. What is missing is not a better template. It is the institutional will to treat incomplete or false reporting as the accountability failure it is — and to impose consequences that make compliance the path of least resistance rather than the exception.

The data gap in guardianship will not be closed by a professional association designing a better form for its own members to file. It will be closed when courts treat monitoring as a judicial obligation, when states treat non-compliance as sanctionable conduct, and when the federal government treats the absence of national data as the civil rights emergency that Congressman Pepper named in 1987 and that four decades of inaction have confirmed.

What Congress Has Asked — and Not Yet Received

The legislative record confirms that the data gap is known, documented, and unresolved.

In May 2023, Senate Aging Committee Chairman Bob Casey and Ranking Member Mike Braun wrote to the Government Accountability Office requesting an examination of guardianship laws nationwide. Their letter was direct: there is a lack of data on guardianships in the United States. They asked the GAO how many guardianships are currently active, how accurate existing estimates are, what steps at the state level have been effective in promoting transparency, and what federal policy could do to support less-restrictive alternatives.

That same year, Senator Casey introduced the Guardianship Bill of Rights Act — S. 1148, 118th Congress — which would, among other things, increase the collection and reporting of state-level guardianship data disaggregated by gender identity, race, ethnicity, sexual orientation, income level, living situation, age, disability type, and reason for guardianship. The bill was referred to the Senate Committee on Health, Education, Labor, and Pensions. No further action has been taken.

In 2018, following a year-long investigation, the Senate Special Committee on Aging conducted a full committee hearing and released a report — Ensuring Trust: Strengthening State Efforts to Overhaul the Guardianship Process and Protect Older Americans — that identified three recurring themes: the absence of consistent and reliable data related to guardianship arrangements; the need for improved oversight of guardians; and consideration for increased use of less-restrictive alternatives. The report received more than 100 public comments. Its core findings remain unaddressed.

What Is Being Built — and What Is Missing

There are efforts underway to close the gap — partial, underfunded, and insufficient to the scale of the problem, but real.

The National Center for State Courts, in conjunction with the Conference of State Court Administrators, has developed the National Open Court Data Standards — a framework for improving data collection and distribution at the state court level. The National Adult Maltreatment Reporting System, now active and reporting data for fiscal years 2016 through 2020, offers a potential source of information on guardianship abuse cases reported through Adult Protective Services. 

The Bureau of Justice Statistics — whose work on elder abuse has included Crimes Against the Elderly, 2003–2013 (Rachel E. Morgan and Britney J. Mason, 2014) and a 2017 Urban Institute study, which was followed by  a technical report in 2021: Assessment of Administrative Data on Elder Abuse, Mistreatment, and Neglect: Final Technical Report. Kamala Mallik-Kane and colleagues (2021) assessed APS data as an alternative metric for measuring elder victimization. 

BJS is a natural federal partner in closing the guardianship data gap. BJS has engaged constructively with this problem, and the agency’s existing infrastructure offers a realistic near-term pathway. The Urban Institute study recognized explicitly that traditional crime statistics underestimate elder abuse and lack the detail required to fully understand and prevent it — and that guardianship abuse falls within the taxonomy of financial exploitation occurring within relationships of trust.

The structural challenge is that guardianship is a civil matter rather than a criminal one, which places comprehensive data collection somewhat outside BJS's direct purview. But a targeted first step is available: adding a question to the National Crime Victimization Survey asking whether an adult in the household — either with a disability or over the age of 65 — is subject to a guardianship arrangement. This single addition would not solve the data problem. It would begin to measure it. It would also illuminate a population that current data systems consistently miss: the substantial number of persons under guardianship living in nursing facilities and group quarters, where guardianship abuse is a chronic and documented problem. As Nina Bernstein reported in The New York Times in 2015, nursing homes have used guardianship proceedings as a debt collection mechanism — seizing legal control over patients to ensure payment. That population will not appear in any household survey. It requires a separate and dedicated data collection effort that no federal agency has yet undertaken.

BJS can serve as a central resource and partner to states in improving data collection, holding bad actors accountable, and protecting citizens subject to or vulnerable to guardianship. The agency's engagement with this problem to date has been constructive. What remains is the institutional commitment — from BJS, from Congress, and from the states — to treat guardianship data as a federal priority rather than a methodological afterthought. A parallel federal effort was underway at the same time.

In 2021, the National Institute of Justice funded an environmental scan of guardianship and conservatorship abuse and fraud, commissioned to identify opportunities to advance knowledge through research or data collection. The scan was conducted by Pamela B. Teaster and colleagues — whose foundational work on elder abuse and the public's health has informed this publication throughout — and represents one of the most rigorous federal attempts to map what is known, what is unknown, and where research investment would produce the greatest return.

The scan arrived at a moment of unusual congressional pressure. On June 30, 2021, Senators Elizabeth Warren and Robert Casey sent a request for information to the U.S. Attorney General and the Secretary of the Department of Health and Human Services, asking specifically about the roles of the Departments of Justice and Health and Human Services in collecting data on adult guardianship — particularly data on abuse and fraud by guardians. The letter named the data gap directly and asked the two departments most capable of closing it to account for what they were doing about it.

Attorney General Merrick Garland noted the NIJ environmental scan in the Department of Justice's Annual Report to Congress on Activities to Combat Elder Fraud and Abuse (October 18, 2022, p.71) — an acknowledgment that the scan existed, that the problem it addressed was serious, and that a systematic national data collection effort had not yet followed from it.

The work of closing the data gap has been mapped. What remains is the institutional will to follow the map.

The Standard

A society that tracks its prison population with precision and cannot tell you how many of its citizens are subject to guardianship has made a choice — about which deprivations of liberty warrant accountability and which do not. That choice is not defensible. It is not accidental. And it will not change until the field, the Congress, and the federal agencies with jurisdiction over this problem treat the absence of data as the emergency it is.

The number of persons under guardianship is unknown. The number being exploited is unknown. The number who have died prematurely under guardian control is unknown. In a system Congressman Pepper called the most punitive civil penalty that can be levied against an American citizen, that unknowing is not a gap in the literature. 

It is a scandal, and a precise one. The system that cannot tell you how many people are under guardianship, or whether they are alive, has nonetheless managed to oversee the transfer of their assets. Those assets were intended for families, charitable causes, and the public treasury. They arrived, instead, at the offices of the professional networks that controlled their final years. The fiduciaries responsible — courts, guardians, and oversight agencies — do not account for their numbers, and are not held accountable for their conduct.

Sources

• Bernstein, N. (2015, January 25). To collect debts, nursing homes are seizing control over patients. The New York Times.
  https://www.nytimes.com/2015/01/26/nyregion/to-collect-debts-nursing-home-seizing-control-over-patients.html

• Bureau of Justice Statistics. (2022). Prisoners in 2022 – Statistical Tables. U.S. Department of Justice.
  https://bjs.ojp.gov/library/publications/prisons-report-series-preliminary-data-release

• Casey, R., & Braun, M. (2023, May 31). Letter to Comptroller General Dodaro, U.S. Government Accountability Office.
  https://www.aging.senate.gov/press-releases/casey-braun-urge-examination-of-guardianship-laws

• Conservator Accountability Project. (2020, April 5). Center for Elders and the Courts.
  http://www.eldersandcourts.org/guardianship/conservatorship-accountability-project 

• Garland, M. (2022, October 18). Annual report to Congress on Department of Justice activities to combat elder fraud and abuse (p. 71). U.S. Department of Justice.
  https://www.justice.gov/elderjustice/media/1253691/dl?inline

• Godfrey, D. (2022). Guardianship data. In ABA handbook on guardianship reform (p. 97). American Bar Association.
  https://www.americanbar.org/content/dam/aba/administrative/law_aging/bif-vol-43-issue4.pdf

• Guardianship Bill of Rights Act, S. 1148, 118th Cong. (2023).
  https://www.congress.gov/bill/118th-congress/senate-bill/1148/text

• Hogan, S. (2023, December 17). Probate courts and guardianship tracking. The Maine Monitor.
  https://themainemonitor.org/probate-courts-ripe-for-reform/

• Mallik-Kane, K., and colleagues. (2021). Assessment of administrative data on elder abuse, mistreatment, and neglect: Final technical report. Urban Institute / Bureau of Justice Statistics.
  https://bjs.ojp.gov/library/publications/assessment-administrative-data-elder-abuse-mistreatment-and-neglect-final

• Morgan, R. E., & Mason, B. J. (2014). Crimes against the elderly, 2003–2013. Bureau of Justice Statistics.
  https://bjs.ojp.gov/library/publications/crimes-against-elderly-2003-2013

• National Center for State Courts. (2023). Collection of reliable guardianship data. Center for Elders and the Courts.
  https://www.ncsc.org 

• National Center for State Courts. National Open Court Data Standards (NODS).
  https://www.ncsc.org/our-centers-projects/national-open-court-data-standards

• Teaster, P. B., and colleagues. (2021). Environmental scan of guardianship and conservatorship abuse and fraud. National Institute of Justice.
  https://nij.ojp.gov/library/publications/environmental-scan-guardianship-abuse-and-fraud-full-report

• Tompkins, J., Connors, H., & Robinson, D. (2025). Seize the data: An analysis of guardianship annual reports. Journal of Aging and Social Policy, 37(3), 512–529.
  https://doi.org/10.1080/08959420.2024.2349494

• U.S. Government Accountability Office. (2016). Elder abuse: The extent of abuse by guardians is unknown, but some measures exist to help protect older adults. GAO-17-33.
  https://www.gao.gov/assets/gao-17-33.pdf

• U.S. Senate Special Committee on Aging. (2018). Ensuring trust: Strengthening state efforts to overhaul the guardianship process and protect older Americans.
  https://www.aging.senate.gov/imo/media/doc/Guardianship_Report_2018_gloss_compress.pdf 

• Warren, E., & Casey, R. (2021, June 30). Letter to U.S. Attorney General and Secretary of Health and Human Services regarding guardianship data collection.
  https://www.warren.senate.gov/oversight/letters/warren-casey-urge-hhs-doj-to-provide-more-data-on-conservatorships-and-guardianships-authorized-by-states

Image: Hiawatha National Forest, MI