Routine Activity Theory, in Practice 

Routine activity theory helps place responsive regulation in context. Routine activity theory was first developed by Lawrence E. Cohen and Marcus Felson in their seminal work, “Social Change and Crime Rate Trends: A Routine Activity Approach” (1979). I was introduced to this theory by Marguerite DeLiema and Scott R. Beach in their webinar, “Social relationship and elder financial victimization” (April 25, 2018).

Routine activity theory describes a physical convergence in time and space — during our routine activities — of a likely (at times motivated) offender with the goal of committing crimes against a suitable target in the absence of a capable guardian.

When first developed, Cohen and Felson took a socio-ecological approach to understanding the 1960s rise in crime despite economic prosperity. As explained by Fernando Miró (2014, 1),

“To explain this contradiction, they focused on changes in structural patterns of people’s daily activity and how the new configuration provided greater criminal opportunities and, therefore, could influence the trends observed in rates of certain types of crime, in particular crimes against persons or property.”

DiLiema (2017, 707) observes, “Most theories of elder abuse focus on victim and/or perpetrator risk factors. Criminological theories add an additional perspective by focusing on the situational factors affecting risk of victimization.”

Here, a “capable guardian” refers to a trusted, capable, concerned person, not specifically a court-appointed guardian. To avoid confusion, what follows refers to a “concerned person” as a placeholder for Cohen and Felson’s “guardian.”

State guardianship systems exercise an entrenched, profound, asymmetric power imbalance (Niklas Luhmann 2017) that acts against imparting any equity and agency to persons subject to guardianship — and to any trusted concerned persons, who, given the circumstances, are denied being “capable,” despite their concern. Simply put, concerned persons (here, typically family or friends) who are desperately trying to rescue an older adult from a guardianship proceedings end up feeling helpless, hopeless, and betrayed by society. Even fewer concerned persons can protect a person once they are subject to guardianship, especially when the court-appointed guardian is a court-appointed lawyer or a commercial enterprise.

In guardianship proceedings, money power refers to the influence of, and impetus to gain, wealth and financial resources. The term money power takes on a particular significance when money funding exploitation comes from a person subject to guardianship. This self-funding exploitation arises when a guardian, in collusion with other actors within the court system, utilizes “legal” mechanisms to misappropriate funds from the assets of the person under guardianship, resulting in more personal financial gain.

This must be considered double jeopardy in a broad sense. Persons under plenary guardianship have already lost autonomy, including control over their finances. When they are then funding their exploitation by those who have been entrusted with their care, it is a second layer of harm and injustice.

Money power is both the motive and means in state-sanctioned abuse and exploitation of persons under guardianship. To meaningfully reduce the pervasive influence of money in guardianship and pave the way for its abolition, a robust and independent system of third-party oversight must be established now.

This third-party oversight can be achieved by Elder Justice Coordinating Council members working in concert with states, all serving as “capable guardians” in the sense defined by Cohen and Felson in their writings on routine activity theory.

Federal involvement —

Federal involvement in combating guardianship abuse and exploitation helps for many reasons. Two are:

• Federal benefits, entitlements, and taxable life savings are at risk

• Many guardianship proceedings are unconstitutional

Both are detailed below.

Entitlements and life savings at risk through criminal exploitation —

The aim of guardianship exploitation is to steal federal entitlements and taxable income from a person subject to guardianship.

Economic factors include:

• The availability of trillions of dollars of older citizens’ life savings and earned entitlements (“new property,” Reich 1966)

• A chronic lack of funding and resources (Solinski 1997) to protect and serve faithfully our most vulnerable adult citizens subject to the state’s care and fiduciary duty. State efforts are impacted by a perceived or conceived cost and concern for balancing state budgets, while the scales of justice are tipped against citizens who are deprived of life, liberty, and property.

“Baby Boomers [born 1946–1964] hold half of the nation’s $140 trillion in wealth.” (Talmon Joseph Smith and Karl Russell; May 14, 2023). Estimates range from $30 trillion to $53 trillion (Cerulli Associates) to $78 trillion(Federal Reserve), depending in part on transfer years. (Estimates do not include the Silent Generation, older Americans born before 1946.) Baby Boomers are set to pass down a staggering amount of wealth to their heirs, marking the largest intergenerational transfer in history. Some money — inheritance to heirs, bequests to charities, and taxes — will never make it to intended recipients due to estate trafficking by the courts through guardianship.

Who is at risk in guardianship? Any older citizen with wealth, or on welfare, or in between. Older Americans’ wealth, or lack of it, reveals a profound dis-equity: There are citizens who have been life savers; there are citizens who need lifesavers.

Some citizens have been life savers, collectively amassing trillions of dollars they hold on to, in part because they don’t know how much they will need for their later years. Here, the financial industry, regulators, and nonprofits play a key leadership role in protecting older adults’ net worth, self-worth, and lives. Empowered to act by legislative acts, this financial and fiduciary realm holds great promise in detecting and arresting financial exploitation and other forms of abuse instrumental to criminal acts — guardianship abuse and exploitation included.

Mark Blyth, professor of political economy at Brown University’s Watson Institute, indicates that (GQ2017):

“Eighty percent of all financial assets are owned by baby boomers. Next stat: 85 percent of that 80 percent is owned by the top 20 percent of boomers. Next stat: 50 percent of boomers have no financial assets whatsoever. So, what that means is the asset inequality within the boomers as a generation, is as great as the inequality across the entire asset distribution, regardless of age.”

“If assets attract thieves, one might expect elder financial exploitation to be limited to, or at least skewed toward, the wealthy. But that is emphatically not the case. Far from reducing the risk, poverty appears to increase the risk of elder financial exploitation,” Stephen Deane reports for the U.S. Securities and Exchange Commission, Office of the Investor Advocate (2018). Dean continues, citing a 2014 New York study by Peterson and colleagues, “‘Thus, somewhat counterintuitively, it was not those with the greatest resources who were most likely to be financially exploited, but those with the least,’ The study found poverty strongly associated with elder financial exploitation.”

These older Americans need lifesavers, largely in the form of their federal benefits (entitlements) — including Medicare, Medicaid, and Social Security.

This property is at risk through benefits trafficking, “an emerging crime that targets older adults and adults with disabilities for the purpose of gaining access to their monthly benefits and/or life savings,” as expressed by Anna Thomas, Special Victims Forensic Specialist, Division of Aging Services, Georgia Department of Human Services. In a California Elder Justice Coalition webinar, Thomas presented Locked Away: Human Trafficking of At-Risk Adults (November 17, 2022), chronicling crimes that constitute a “racketeering enterprise” (cue 45:26).

Thomas notes, “In Georgia we have come up with a way to respond …” (44:37), in part with a law, Benefits Trafficking (O.G.C.A. §6–5–102.1 2018), that mirrors Georgia’s already-existing human trafficking statute. It is the only law of its kind on the books, and it has inspired colleagues in other states who are advancing their efforts to combat benefits trafficking, which is so egregious and whose intent is similar to guardianship abuse.

Guardianship abuse and exploitation employ state-sanctioned means to steal a person’s benefits and net worth (personal property, life savings) in two ways: while they are alive under guardianship, and, should assets remain, after their death (at times, premature) during the settlement of their estate.

There can be embezzlement, billing for legal services at will, disposing of assets at a discount to individuals who benefit from sweetheart deals, when guardians and other affiliates serve as executors to reap a percentage of the estate, and much more.

To address and arrest guardianship as a means to defraud federal entitlements, the Elder Justice Coordinating Council can help coordinate council members, including the inspector generals at the Social Security Administration (SSA) Office of the Inspector General, Gail Ennis; the Veterans Administration (VA) Office of the Inspector General, Michael Missal; and the Department of Health and Human Services, Office of the Inspector General, Christi Grimm.

The EJCC can also work with council members, including the U.S. Securities and Exchange Commission, the U.S. Department of the Treasury and the Consumer Financial Protection Bureau, to address and arrest guardianship when used as a criminal means to reduce the taxable value of the assets of a person subject to guardianship (during their life) and their estate.

Denial of constitutional rights —

“Adopting elder justice approaches to elder abuse starts by changing how we think about abuse. This begins by adopting a conceptual framework that reflects a social justice and individual rights perspective,” observes Lisa Nerenberg, who asks, “For example, would labeling the violation of a right (e.g., the right to contest guardianship) as abuse lead to it being taken more seriously and compel action?” (2019; 102, 99)

Guardianship, despite its noble intention to protect vulnerable individuals, can infringe upon citizens’ constitutional and humanitarian rights even in the absence of blatant abuse or exploitation. For example, this can happen in the denial of legal representation, equal rights, and due process, effectively stripping individuals of their right to participate in decisions that significantly impact their lives.

In the ABA’s Commission on Law and Aging’s bi-monthly journal Bifocal, Nerenberg emphasizes (January 14, 2021):

“The Elder Justice Act [of 2009, S.795, H.R.2006] was a milestone in elder abuse prevention, not only because it was the first federal legislation to address abuse, but because it recast abuse, or freedom from it, as a right. This came after decades of framing and reframing elder abuse as a medical syndrome, a caregiving issue, and a public health problem.”

In The Elderly in Guardianship: A Crisis of Constitutional Proportions, Mark D. Andrews, whose work informs the discussion that follows, explains (1997, 76):

“Many current guardianship statutes hastily disavow the rights of an elder with minimal constitutional oversight. The guardianship process gives insufficient attention to indispensable constitutional safeguards, such as the rights to equal protection of the laws and due process…”

The U.S. Constitution expresses only one command twice, the “due process clause.” The Fifth Amendment (Cornell) says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment (Cornell), ratified in 1868 after our Civil War, underscores this Constitutional obligation to all states and the right of the federal government to intervene, should citizens’ constitutional rights be denied.

Beyond lack of due process, adult Americans’ constitutional rights are also violated when the following are deficient or denied: guarantee of representation by counsel; presumed innocence and clear and convincing evidence (vis-à-vis a respondent’s competency); adequate determination of legal capacity (employing a functional model approach) adhering to specific professional standards; least restrictive means and alternatives (over plenary guardianship); First Amendment freedom of expression and association (Cornell); presumably the Sixth Amendment right to obtain witnesses (Cornell); Seventh Amendment trial by jury (as probate sits without a jury); Fourteenth Amendment equal protection clause; provisions of the Americans with Disabilities Act (ADA) including its violation (Salzman 2009); and Olmstead, informed by the ADA. These are deficient or denied in guardianship, routinely — and in guardianship abuse and exploitation, intentionally.

Human rights ring hollow until coupled with a clapper of capability that allows responsibility to resound and send a strong pro-social signal community-wide and country-wide. Such capability is achieved in the Council, its members, and all of our states and sovereign tribes united in concern and capacity to maintain citizens’ constitutional and humanitarian rights through functional federalism.

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.