In this essay, I present a blueprint for the elder justice movement that lays out how concerned persons can stand up and make a difference, leading to a more passionate and engaged society, better protections for older adults, and systemic changes to put an end to abuse—state-endorsed guardianship abuse and exploitation, included.

Aim high

Elder justice is a relatively new field. Like other social movements, its early efforts focused on responding to abuse, particularly the harm inflicted by perpetrators and the vulnerability of victims. This approach, which is mostly reactive, has informed backward-looking prosecution rather than forward-looking prevention.

An elder justice focus on prevention empowers us to live our best lives. It strengthens our social fabric by challenging ageist norms, promoting positive behaviors, and safeguarding humanitarian and constitutional rights.

Below, I explore experts’ research and framing of abuse and exploitation with an added focus on guardianship. This research functions like an upper-level stress test, assessing our country’s strengths and weaknesses to make society stronger.

This stress test is a real-life exercise that evaluates the stability of our society — the underlying norms, values, and institutions that hold us together. Will they hold up under force? Or break under the pressure?

Laura Mosqueda and Lisa Nerenberg separately indicate that guardianship abuse and exploitation may be most salient and severe when viewed in the context of threats to individual rights through abuse of power in a relationship of trust.

When introducing the Abuse Intervention Model (AIM), Laura Mosqueda and colleagues (2016, 1879) explain,

“Although many theories have been proposed, adapted and applied to understand elder mistreatment, there has not been a simple, coherent framework of known risk factors of the victim, perpetrator, and environment that applies to all types of abuse.”

AIM is intended “to identify risk factors for elder mistreatment for individual cases and enable a plan to be developed to prevent or mitigate elder mistreatment.”

Mosqueda notes “interpersonal, sociocultural, and multisystem theories as the predominant theories explaining elder mistreatment,” (page 1879). These theories inform AIM, whose model includes modifiable risk factors of elder mistreatment (read: abuse) in the context of three domains:

1. Vulnerable Older Adult — (impaired physical function, impaired cognition, emotional distress and/or mental illness)

2. Trusted Other — (dependency, emotional distress and/or mental illness, impaired physical function)

3. Context — (low-quality relationship, social isolation, cultural norms)

As elaborated by Mosqueda (page 1880),

“The term ‘trusted other’ includes a variety of people, including family members, neighbors, friends, paid caregivers, other household employees, financial advisors, and other advisors.”

Mosqueda’s trusted other domain overlooks a crucial group: guardians and other actors within state court systems. As guardianship manifests society’s greatest responsibility held in trust (Luhmann, 2017), it is essential to include these state-sponsored actors in the “trusted other” domain. Moreover, the very factors Mosqueda highlights for the other two domains — vulnerable older adult and context (especially through isolation) — are often acutely exacerbated within guardianship cases. Therefore, integrating guardians and other state actors into the AIM model strengthens its overall comprehensiveness and applicability to the complex realities of elder abuse in guardianship situations. 

Reduce or eliminate risk factors

Lisa Nerenberg’s “Elder Justice, Ageism, and Elder Abuse” tackles America’s elder care crisis head-on, wielding global insights and a groundbreaking model to champion prevention. Nerenberg affirms Adewale Troutman’s mantra that, “health justice is social justice.”

Nerenberg conducts a comprehensive examination of the state of our nation (with global references). She leads with justice and makes recommendations for reform, based on a new model.

Summarized in an American Bar Association Bifocal article, Nerenberg builds and test drives:

“[an] elder justice model, which is a template for how elder justice translates into interventions, programs, and public policy (2021, 54). The model itself draws from two constructs both of which are used in public health: the ecological model and the hierarchy of prevention…The public health hierarchy describes approaches to preventing threats…”

Most harms inflicted on older persons are not one-off acute incidencts. The harsh reality is that most elder abuse is chronic, as evidenced by the forms, frequency, escalation, and duration of abuse delivered and then endured by so many persons — my grandmother included. Victims are prone to re-victimization.

Nerenberg’s hierarchy includes three levels, from proactive to reactive (2021, 54):

• Primary, to reduce or eliminate risk factors;

• Secondary, to identify problems at an early stage, through screening toward risk reduction; and

• Tertiary, to mitigate harm and prevent re-victimization and escalation of abuse.

Real impact demands shifting our focus from damage control to upstream interventions that tackle root causes and prevent abuse from occurring in the first place. Teaster and Hall, whose work will be introduced more formally below, explain why prevention has not taken the lead until now:

“Most of the early work defined EA [elder abuse] from the conceptual, research, and practice frameworks undergirding and embraced by aging services, criminal justice, and domestic violence prevention systems and networks (Nerenberg, 2008). Because the overall approach taken by the domestic violence sector is one focused on secondary and tertiary prevention of intimate partner violence (IPV) among women of reproductive age, EA has not been well integrated into prevention strategies (Otto & Quinn, 2007).”

Nerenberg (55) elaborates, “Applying these constructs to elder justice, threats can be addressed at four levels [bullets and italics added, below], spanning from self to society:

• The first level addresses threats to individual rights;

• [The second level considers] threats at the interpersonal level [with a focus on] abuses of power against older adults;

• Third level threats include disparities in access to community resources and opportunities; and

• [Fourth level] threats at the societal level include ageism in public policy and opinion.”

In cases of adult guardianship abuse, all four levels of threats are clear and severe.

Guardianship — framed in the context of a person-subject-to-guardianship and court-appointed-guardian dyad — is a flawed social construct with anti-social characteristics, similar to some of the archaic frameworks that still address elder abuse in the context of the elder-abuser dyad.

Nerenberg notes, “social support is now believed to be the strongest protective factor” in preventing abuse (55). In guardianship abuse, social support is denied or highly compromised due to legally sanctioned threats to individual rights, abuses of power, disparities in access to community resources and opportunities, and ageism.

Guardianship deprives society and citizens of an inclusive, socio-ecological approach to protecting older adults that embraces our social networks of support and, when necessary, facilitates research-informed means of supported independence, including supported decision-making(Administration for Community Living).

Returning to Nerenberg’s hierarchy, secondary risk reduction and tertiary mitigation are all but impossible in guardianship, given the lack of rights and heightened potential for abuse. As a social harm and anti-social construct, guardianship is a risk factor against our social compact. While modifiable, reducing the risks imposed by guardianship has met with failure for over two generations, since before Representative Claude Pepper’s 1987 congressional hearing on guardianship subtitled “A National Disgrace.”

Nerenberg’s most proactive level is the primary level — to reduce or eliminate risk factors. It’s by far the most forward-looking and also the highest aim for elder justice. It is essential in guardianship since secondary risk reductionand tertiary mitigation are almost impossible. To eliminate risk factors, states must abolish guardianship and adopt a more legal, ethical, and humanitarian approach to safeguard society and our future selves — now.

David Godfrey (2022, 96), Director of the American Bar Association Commission on Law and Aging, notes:

“I get asked, why put effort into fixing guardianship? Why not focus on replacing it?… The short answer is, we can’t abandon the at least 1.3 million people who are already in the guardianship system. We need to fix the system while trying to replace it, and major parts of that change must come from inside the Courts.”

With reference to the “1.3 million” citizens subject to guardianship, Godfrey notes, “ …that is the same guess on how many guardianships that we have been hearing for 30 years.” The probable figure is much more. States have no idea. Godfrey concludes, “…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.” (97). This harsh reality suggests courts cannot be trusted to achieve change alone — or to serve and save our most vulnerable citizens today.

Guardianship must be abolished.

In the meantime, to reduce the risk inherent in guardianship, legislators must enact laws to appoint and authorize trusted, capable, and vigilant third parties to oversee guardianships. Concurrently, self-appointed third parties, including federal agencies, must pursue their own investigations and subsequent steps in response to criminal activity. This two-pronged approach will help ensure guardianships are carried out in the best interests of the citizens they serve and that any potential abuse is identified and addressed quickly and forcefully.

In the United States, each state is in the “business” of guardianship. To date, states have regulated their own “business” with dire and deadly consequences — when abuse happens, “the outcomes can be tragic, sometimes fatal.” (Godfrey 2022, 96). In some states and counties, wolves are watching the sheep. Trusted, capable, empowered, and funded third-party protectors are crucial.

Conflicts of interest and lack of transparency embedded in state courts stifle their ability to self-regulate responsibly — as demonstrated by decades of documented abuse and exploitation.

Chronic challenges in guardianship oversight necessitate a bold shift. Capable, empowered, and well-funded third-party protectors represent the most viable and adaptable solution, paving the way for responsive regulationthat actually safeguards vulnerable individuals.

As defined and practiced by John Braithwaite,

“Responsive regulation is about ‘tripartism’ in regulation. It highlights the limits of regulation as a transaction between the state and business. It argues that unless there is some third party (or a number of them) in the regulatory game, regulation will be captured and corrupted by money power.”