Paradigm Shift

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.

When I learned of my grandmother’s abuse, I was filled with angst, frustration, and a sense of impotence as I watched her world, which had spanned the globe and a century, become so diminished and compromised. I decided to act, but I had no idea what to do or whether my actions might make matters worse.

Working with many other concerned persons, I helped save my grandmother. In 2006, I petitioned the New York Supreme Court for guardianship, which was awarded. The guardianship allowed my grandmother to spend her last days as she wished: in her country house, with loved ones, and free from fear.

My grandmother wouldn’t have wanted to be one of America’s most famous cases of elder abuse. She didn’t choose to be victimized while in the throes of Alzheimer’s disease (interview with Jason Karlawish, 2017) — to be deprived, manipulated and robbed — as part of my father’s “scheme to defraud in the first degree,” so characterized by the Manhattan District Attorney’s Elder Abuse Unit, led by Liz Loewy. Still, my grandmother’s sad circumstances have informed a timely—and timeless — cause: elder justice. This might be her greatest and most lasting legacy.

Our greatest impediment to elder justice is ageism. By living to the fullest each day, year after year, decade after decade, my grandmother did so much to combat this unfortunate prejudice. It is ironic and so sad that her ageless attitude did not shield her from abuse. The same can be said for millions of older adults suffering similar harm today.

Aftermath and catalyst

Elder abuse is often poorly understood, even in some courts that handle such cases.

In a December 2006 court decision my grandmother’s guardianship judge authorized reimbursement of my fees for bringing the guardianship petition, stating,

“Although this matter voluntarily settled before the hearing, I find the petitioner Philip Marshall was the prevailing party…”

But the judge also decided to award my father a portion of his legal fees, writing,

“I make this ruling based on the conclusion of the court evaluator that the allegations in the petition regarding Mrs. Astor’s medical and dental care, and the other allegations of intentional elder abuse by the Marshalls, were not substantiated.”

Decision — In the Matter of the Application of Philip Marshall for the appointment of a Guardian for the Person and Property for Brooke Astor, an Alleged Incapacitated Person. Judge John A. Stackhouse, Supreme Court of the State of New York. December 4, 2006

The court evaluator’s report opened the door wide to claims that there was no elder abuse. “Astor son is cleared,” headlined The New York Times, which quoted my father’s lawyer saying, “This is a case that was given birth from allegations that were absolutely fictitious regarding Mr. Marshall’s care of his mother.” (December 6, 2006)

Based on this decision, I can only conclude that the court evaluator did not understand the meaning of elder abuse — nor did he connect the dots and decimal points. He never made a connection between the allegations in my guardianship petition and an appendix to his report: a long list of financial dealings, totaling tens of millions of dollars, identified by the temporary guardian of the purse, JPMorgan Chase. These transfers directly affected our out-of-court settlement, which was won in large part because of these financial findings.

Nevertheless, on the dark December day of this decision, my Pyrrhic victory found me losing the greater war against elder abuse. Was my grandmother’s case to be elder justice’s Plessey v. Ferguson, setting back elder justice a half- century? Was I to repurpose my family’s dirty laundry as surrender flags, giving up on the greater cause I had been thrust into? No. This one setback catapulted my campaign from case to a cause bigger than my grandmother and myself.

As my father was declaring he had been vindicated, the Elder Abuse Unit of the Manhattan District Attorney expanded its investigation, empaneled a grand jury, and issued subpoenas. In 2009, after a 17-week-long trial with 72 witnesses, a grand jury convicted my father on 14 of 16 counts.

Eligon, John. Mrs. Astor’s Son Guilty of Taking Tens of Millions and Hartocollis, Amanda and John Eligon. Looking Beyond the Glamour, Astor Jury Found a Moral Flaw New York Times, October 8, 2009.

This was a very bittersweet harvest after a long spring and summer of heart-wrenching testimony. Yet it’s a harvest that has nourished the cause of elder justice. We advanced from a time of tribulation to a time of trial, from the anguish of hearing the allegations in my guardianship petition were “unsubstantiated” to a criminal trial that proved otherwise. All but one count was upheld upon appeal. At 89, my father served two months of his one-to-three-year sentence before being granted medical parole.

Throughout these essays, the term "victim" is used as a placeholder. The term "victim" does not invoke a strengths-based approach to recovery. In Latin, the word "victima" means a sentient creature killed as a religious sacrifice. Referring to people who have been harmed as "victims" is not a person-centered approach to healing individuals and society of social harms. “[Do not] trim a life to fit the frame” (James Hillman, The Soul’s Code, 1996, 5)

Elder abuse is a crime

In filing a guardianship petition for my grandmother, I hoped this “family affair” would be quietly settled. Instead, I learned that elder abuse is not a family affair or a “civil” matter. Elder abuse is a crime, and it needs to be treated as such so victims and supporters are not re-victimized by perpetrators and by society’s lack of responsibility and response.

Yet, as Shalon M. Irving and Jeffrey E. Hall (2018, 21) observe,

“Framing EA [elder abuse] as a crime that threatens the autonomy and rights of frail older adults in community settings (and possibly indicates some level of family dysfunction) directs attention to the abusive act itself and its consequences, yet fails to address the many antecedents and determinants or the implications and costs for communities, thereby reducing the likelihood that attention and resources will be directed at primary prevention of EA.”

The profound implications and substantial societal costs of elder abuse become evident when viewed through the lens of zemiology, a field that offers a broader and more nuanced perspective on social harm compared to traditional criminology.

Zemiology—derived from the Greek word zēmía, meaning “harm” — is a critical approach to the study of crime and social harm that focuses on the social, economic, and political factors that contribute to harm, rather than simply focusing on offenders and victims while failing to capture the full spectrum of damaging behaviors and their impact on individuals and society.

Zemiology adopts a holistic approach that seeks to uncover the root causes of harm and develop interventions to address underlying structural violence. “The arrangements are structural because they are embedded in the political and economic organization of our social world; they are violent because they cause injury to people (typically, not those responsible for perpetuating such inequalities),” note Paul E. Farmer and colleagues (2006, 1686) with reference to Johan Galtung’ seminal work (1969).

Advocating for a zemiological approach, Victoria Canning and Steve Tombs highlight the interconnectedness of social harm and justice. The authors state (2021, 56),

“A focus on crime points us towards a focus on the inter-personal; by contrast, a social harm or zemiological approach leads us more inevitably, or at least more easily, both to understandings and to effective responses located beyond the level of individuals.”

To be complacent is to be complicit

Along my journey, I realized that to be complacent about elder justice is to be complicit in elder abuse. After my father’s trial, I decided to advance my elder justice efforts beyond my grandmother’s case. As I became more vocal and confident in my efforts, I was invited to present keynote addresses from border to border and coast to coast. I met face to face with hundreds of elder justice advocates who, sometimes with so little, have done so much for so many. These years were my listening tour — a rich, rewarding and empowering education.

I am committed to helping combat elder financial exploitation, a crime that can be detected and used as evidence to arrest exploitation and other forms of abuse that are instrumental to theft but are more difficult to arrest, introduce as evidence, and prosecute. 

The combined strengths of collaborative partnerships enable effective measures to address and arrest abuse. Such efforts are illustrated in a white paper titled All in This Together: Adult Protective Services and Financial Institutions’ Efforts to Combat Elder Financial Exploitation by the NAPSA Financial Exploitation Advisory Board (Snyder, Hinz, Marshall; 2023). This white paper helps reduce the “friction that works against the change we see to create.” (Nordgren Schonthal 2021, 3)

While I am still committed to combating financial exploitation, I have embraced a more expansive concept of what it is I am trying to do. I encourage others to do the same. We must go a step further than preventing elder abuse — we must work for elder justice, for a holistic approach to addressing crimes, social harm, healing, and dignity for our future selves.