Despite efforts by many experts and advocacy by concerned citizens countrywide, guardianship abuse and financial exploitation are more entrenched today than in the early 1980s when Congressman Pepper began research on the subject.
In part, this is due to the insidious nature of elder abuse and exploitation as state-sponsored white-collar crime in too many adult guardianships. This epidemic threatens our society, justice system, constitutional rights, and future selves.
White-collar crime is committed by individuals in positions of power and trust. White-collar crime is associated with corporations and their individual actors: Today, Bernie Madoff, Sam Bankman-Fried, Carlos Watson, Elizabeth Holmes, and Sunny Balwani come to mind. Guardianship abuse and exploitation must also be considered a white-collar crime, especially when viewed in the context of power and trust.
The Federal Bureau of Investigation defines white-collar crime as (U.S. DOJ 1989, 3; cited in Barnett):
“. . . those illegal acts which are characterized by deceit, concealment, or violation of trust and which are not dependent upon the application or threat of physical force or violence. Individuals and organizations commit these acts to obtain money, property, or services; to avoid the payment or loss of money or services; or to secure personal or business advantage.”
In White-Collar Criminality (1940), Edwin Sutherland is most known for introducing this concept to broaden a widespread but limited understanding of crime and to extend beyond society’s biased belief, “that crime, as popularly conceived and officially measured, has a high incidence in the lower class and a low incidence in the upper class.” (1) Sutherland’s seminal work has done much to deepen our understanding of an immense sector of crime that debilitates all of society. These crimes are not limited to a single victim — they are a social harm.
Brian K. Payne assesses eight different concepts and 12 definitions that criminologists employ, noting,“A definition of white-collar crime acceptable to all groups is yet to be developed.” (2017, 37–39). The perception and focus remain on corporate crimes. But there is rising interest and concern in areas that include health, education, housing, the environment, transnational technology-facilitated fraud, and systems of social control — the courts included.
Definitions of white-collar crime typically focus on three aspects: the type of offender (socio-economic status and/or occupying a position of trust), the organizational culture, and the type of offense. Toward data-informed crime prevention, the Federal Bureau of Investigation (FBI) favors a definition focused on the “type of offense” (Barnett n.d.), in part because the other distinctions are not covered in the National Incident-Based Reporting System (NIBRS), which recognizes that “Every criminal state statute must be mapped to a NIBRS offense definition to help ensure uniformity and consistency of data across the country.” (FBI 2018).
Twenty years ago, Ivasncevich and colleagues noted, “Annual economic losses from white-collar crime have been estimated to exceed losses from common crime by a ratio of anywhere between 17 and 32 to 1.” (2003, 117) A firmer figure can eventually be obtained with the help of the FBI NIBRS, which it transitioned to in 2021. “Every state is now NIBRS compliant and can accept NIBRS data.” (FBI, August 11, 2022) The challenge is to address NIBRS offense definitions (2018, released Fall 2019) informed by a greater understanding of white-collar crime in general and guardianship abuse and exploitation in particular.
From a criminological perspective, white-collar crime entails “violations of the law to which penalties are attached that involve the use of the violator’s position of significant power, influence or trust in the legitimate economic or political institutional order for the purpose of illegal gain, or to commit an illegal act for personal or organizational gain.” (Reiss and Biderman 1980, 4)
“Those in which ‘one party is at the mercy of the other’s discretion’ [Weinrib 1975, 7] are labeled ‘fiduciary’ or ‘trust’ relations and subject to much stricter legal rules and intrusive moral rhetoric,” observes Shapiro.
Guardianship and its reform seem to be on the sidelines until we “think about white-collar crime as abuse of trust” (Shapiro 1990). This approach informs social theory, criminology, policy, legislation, and response. This approach allows other concepts to coalesce and serve as a catalyst to help arrest abuse and advance systemic reform.
All too prevalent fraud (Office of Victims of Crime, U.S. DOJ) and “pure” elder financial exploitation (Shelly L. Jackson and Thomas L. Hafemeister 2012) aside, elder abuse is a betrayal of trust. As defined by the World Health Organization (WHO):
“Elder abuse…is a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person. This type of violence constitutes a violation of human rights.”
This vital relationship of power and trust is underscored below, and by two hearings and reports of the U.S. Senate Special Committee on Aging:
“Abuse of Power: Exploitation of Older Americans by Guardians and Others They Trust.” (April 18th, 2018)
“Ensuring Trust: Strengthening State Efforts to Overhaul the Guardianship Process and Protect Older Americans” (November 28th, 2018) and the companion Guardianship Report.
Above all other relationships between society and self — and far, far beyond any informal “expectation of trust” — guardianship embodies our most demanding legal, social, ethical, and moral obligation. Arguably, guardianship manifests society’s greatest responsibility held in trust, given the courts’ and guardians’ broad-scope fiduciary duties and the profound, asymmetric power imbalance (Luhmann 2017) imposed on persons subject to guardianship in the absence of beneficiary control.
Fiduciary or trust relationships, in which “one party is at the mercy of the other’s discretion” (Weinrib 1975), must be subject to our strictest legal rules, pro-social norms, and moral obligations.
“In contrast with the power of white-collar criminals is the weakness of their victims,” Sutherland observes (1940, 9). The court-determined fact that persons subject to guardianship are (allegedly) cognitively impaired compounds this perpetrator-victim power imbalance. This is made more predominant and persistent by courts when they deny a strengths-based approach to self-determination informed by a capabilities approach through supported independence, and when they turn a blind eye.
In addition to older citizens subject to guardianship, asymmetric power imbalance is evident in cases involving adults with psychosocial disabilities, note Matthew S. Smith and Michael Ashley Stein reporting in Bill of Health of the Petri-Flom Center, Harvard Law. The authors quote, “This power, which has undoubtedly been left open to abuse, requires urgent and systematic checking if the abuses of the past are not to be repeated,” in the introduction of Mental Health, Legal Capacity, and Human Rights. (September 29, 2021)
To underscore the trust-power imbalance, Ensuring Trust: Strengthening State Efforts to Overhaul the Guardianship Process and Protect Older Americans (U.S. Senate Special Committee on Aging, November 2018) begins its executive summary with:
“Guardians are entrusted with significant power over individuals who rely on their support. A guardian’s authority can range from deciding where an individual will live and when to seek medical care to choosing if family members are allowed to visit and how to spend retirement savings. Most guardians are selfless, dedicated individuals who play an important role in safeguarding vulnerable individuals. However, recent reports of guardianship abuse highlight cases where guardians have abandoned their duty of doing what is in the best interest of the individual in their care. Unscrupulous guardians acting with little oversight have used guardianship proceedings to obtain control of vulnerable individuals and have then used that control to liquidate assets and savings for their own personal benefit.”
As observed by Karen Cook in Trust in Society (2001, xvii-xviii), published by the Russell Sage Foundation:
“Bacharach and Gambetta analyze in detail the significance of signs of trustworthiness for the ‘primary problem of trust’ — deciding when and whom to trust about what… The problem to be resolved in this analysis is the potential for opportunism and mimicry of trustworthiness.”
Given ample impetus for opportunism through the betrayal, mimicking, and manipulation of trust, perpetrators employ insidious, skillful means to hack trust in ways that compromise both individuals subject to guardianship and society, whose foundation and future rests on trust.
Guardianship abuse and exploitation, as a white-collar crime, involves the manipulation of trust and fiduciary responsibility by actors associated with the court system. Here, manipulation is twofold: it means (1) “to control or play upon by artful, unfair, or insidious means especially to one’s own advantage” and (2) “to manage or utilize skillfully.” (Merriam Webster) Of the latter, this skill is taught to perpetrators by the state, through differential association.
Differential association —
An alarming number of guardianship abuse and exploitation cases appear to be state-sanctioned — whether by commission, omission, collusion, or all three.
Commission extends beyond outright criminal acts by an individual to aiding and abetting other persons who are engaged in illegal acts, through collusion.
With respect to financial abuse, omission—or the failure to do the right thing — may extend as far as found in California statutes to include a “person or entity knew or should have known that a conduct is likely to be harmful [italics, added] to the elder or dependent adult.” (Welfare and Institutions Code §15610.30(b)), for example. In guardianship, the sole focus and burden is on the knowledge (or lack of it) of those in the court system, not on the person under guardianship that the court had deemed to be incapacitated, hence legally lacking know-how. Just as persons under guardianship have been denied rights, they have been stripped of responsibility, which is now assumed fully by the state along with obligations, many affirmed under oath, taken by actors in the system. Legislative counsel’s digest notes that California Senate Bill №278 (introduced by Senator Dodd, February 1, 2023) “…would state that [the bill’s] provisions are declaratory of existing law.”
Collusion refers to the nature of this white-collar crime as racketeering(18 U.S. Code §1961 — Definitions, Cornell). Collusion among individuals engaged with the court system may be fostered by differential association.
“[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,” explains John M. Ivancevich and colleagues (2003, 118) This false premise is a leading indicator of white-collar crime as it involves criminal intent that has been learned. Pertinent to guardianship, this criminality is not learned in corporations, but in our state court system.
For the purposes at hand, what is vital is Sutherland’s concept of differential association through which “white-collar criminality, just as other systematic criminality, is learned; that it is learned in direct or indirect association with those who already practice the behavior.” What is different from other crimes is that “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.” (Sutherland 1940, 11) Most white-collar crimes are manifested by a small circle of cadres — lawyers in corporate offices or in ex parte court hearings, for example. Explicit in guardianship abuse and exploitation cases, lawyers are in control and in combat at the onset, at times before an (allegedly) incapacitated respondent subject to guardianship proceedings enters the arena — many times without due process.
Differential association allows us to understand that criminal behaviors are learned by interacting with others in frequent and intimate groups in which criminals acquire specialized knowledge in how laws and trust can be gamed to their advantage to minimize risk and favor reward, and conclude that deciding to engage in criminal act is a rational choice (Shover and Hochstetler 2005).
Differential association drives criminals to act with impunity. “Impunity is the exercise of power without accountability, which becomes, in its starkest form, the commission of crimes without punishment,” The Eurasia Group in its 2022 Atlas of Impunity, which provides a quantitative assessment of its definition of impunity, measured by independent indicators across five sites in society. In the United States (naturally, not covered in the atlas), state-sanctioned guardianship abuse and exploitation may be assessed in four of the five independent indicators: unaccountable governance, human rights abuse, conflict and violence, economic exploitation, and environmental degradation.
Probate courts provide a favorable environment for learning deviant behavior through differential association and toward scaling such nefarious efforts. It remains to be seen whether equity courts provide a nurturing incubator space that advances other forms of white-collar criminality beyond guardianship abuse and exploitation, “infiltrating legitimate business” (Cressy 1969) in other arenas.
“[L]ike elder abuse, scholars disagree as to what offenses should be classified as white-collar, as well as which offenders should be identified as white-collar criminals,” observes Policastro, Gaine, and Payne (2015, 30), who then turn their focus on potential offenders when they consider, “[with] white-collar offenses committed against older individuals, a variety of offenders such as home health care workers, telemarketers, and home repair persons may victimize older adults.”
The authors’ neglect in mentioning offenders in probate courts are (1) looking inward, an indicator of the insidious nature of these offenses, and (2) looking outward, a societal disregard of this corruption and cronyism advanced by systemic ageist attitudes, society-wide. Both require urgent attention. Both are informed by Henry N. Pontell (2016, 51), who observes, “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 and exploitation is not a cottage industry. It is a business, an enterprise that “takes place across a spectrum including legal and criminal businesses” (Smith 1970, 358). 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).
Braithwaite notes that after “international corporate bribery scandals of the 1970s, there was a decade when many of the brightest and best criminologists of that generation prioritized the study of white-collar crime. That surge of interest gradually waned.” (2022, 65)
Fortunately, a new dawn rises in a new publication and in renewed interest and intent in addressing and arresting white-collar crime. In its 2020 inaugural issue in 2020, the Journal of White Collar and Corporate Crime (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.”
Sustained efforts will also inform and transform legislation, practice, and prevention. The journal was launched by the Division of White-Collar and Corporate Crime, established within the American Society of Criminology in 2017. 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).
NW3C was invited by the U.S. Department of Justice to collaborate on the DOJ-funded, newest Elder Abuse Guide for Law Enforcement (EAGLE) free online training in partnership with The National Center on Elder Abuse, which has helped expand partnerships 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)
Sutherland (1940), in his seminal publication, concluded that “Differential association culminates in crime because the community is not organized solidly against that behavior.” These writings signal our clarion call to arms. 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)
This essay was respectfully submitted to the Administration for Community Living, representing the Elder Justice Coordinating Council, in response to the Federal Register Notice (Vol. 89, №58/Monday, March 25, 2024, Notices 20661) “Request for Information: Elder Justice Coordinating Council Priorities.” April 24, 2024.