Erica F. Wood concluded (2012, page 79), “guardianship can be a godsend or a gulag, a help or a hindrance.”
The U.S. Department of Justice Elder Justice Initiative provides the following definition of guardianship:
“Guardianship is the appointment by a [state] court of a person or entity to make personal and/or property decisions for an individual whom the court finds cannot make decisions for themselves. These may be decisions about an individual’s property, personal affairs, or both.”
Abuse aside, guardianship — sometimes called conservatorship — deprives society and citizens of an inclusive, socio-ecological approach that embraces our social networks of support, when necessary facilitated by a research-informed means of supported independence including supported decision-making (Administration for Community Living). Plenary, permanent guardianship is frequently unnecessary and frequently imposed. Lisa Nerenberg notes (April 23, 2021),
“Guardianship is a blunt force instrument that is often applied when surgical approaches are better suited to cognitively impaired elders’ needs.”
Guardianship — framed in the context of a person-subject-to-guardianship and court-appointed-guardian dyad — is a flawed social construct displaying anti-social characteristics, similar to some of the archaic frameworks that still address elder abuse in the context of the elder-abuser dyad.
Lisa Nerenberg, in 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 conducts a comprehensive examination of the state of our nation (with global references) and recommendations for reform, informed by a new model. Nerenberg presents a hierarchy of prevention that 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.
Secondary risk reduction and tertiary mitigation are all but impossible in guardianship, given the frequent lack of rights — added abuse, aside. As a social harm and anti-social construct, guardianship is a risk factor acting against our social compact. While modifiable, reducing the risks imposed by guardianship has met with failure for over two generations, prior to Representative Claude Pepper’s 1987 congressional hearing on guardianship subtitled “A National Disgrace.”
Nerenberg’s most proactive primary level — to reduce or eliminate risk factors— is by far the most forward-looking and highest aim for elder justice. It is essential in guardianship since secondary risk reduction and tertiary mitigation are almost impossible. To eliminate risk factors, states must abolish guardianship and adopt a more legal, ethical, and humanitarian approach to safeguarding society and our future selves — now.
Guardianship can foster abuse and exploitation that is enabled and abetted by entrenched power imbalances, limited resources, inadequate oversight, minimal accountability, lack of transparency, court cronyism, and even outright corruption. In this advantageous environment, guardianship may be employed strategically as a weapon and a shield, allowing bad actors to compromise citizens’ net worth, self-worth, and lives.
Once imposed, the near-irrevocable nature of permanent and plenary guardianship leaves persons subject to its authority and their advocates perpetually fighting a losing battle against a system intended to safeguard citizens, not bad actors.
Reform, then abolition of guardianship, will address Nerenberg’s first and second-level threats to individual rights and abuses of power at the primary, proactive level of reducing or eliminating risk factors — here, inherent in guardianship.
Even in the absence of abuse and exploitation, guardianship strips citizens of their constitutional and humanitarian rights and creates the potential for additional harm. For morally compromised individuals, the dehumanizing nature of guardianship provides a means and even a motive to exploit and abuse adults, often without consequences.
Guardianship abuse — most aimed toward financial exploitation — is so deeply entrenched in our state court systems and addressing it is a daunting task. Each state, in concert with coordinated federal determination, must make an effort equal to the tremendous trauma and the cost abuse and exploitation have imposed on our most vulnerable adult citizens, their families, taxpayers, and society.
Elder justice is a relatively new field of study. 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 rather than proactive, has informed backward-looking prosecution rather than the forward-looking prevention inherent in elder justice.
Real impact demands shifting our focus from damage control to upstream interventions that tackle the root causes and prevent abuse from taking root in the first place. In Upstream: The Quest to Solve Problems Before They Happen, Dan Heath declares:
“My goal in this book is to convince you that we should shift more of our energies upstream: personally, organizationally, nationally, and globally. We can — and we should — stop dealing with the symptoms of problems, again and again, and start fixing them.”
Heath continues, “To go upstream is a declaration of agency: I don’t have to be at the mercy of these forces — I can control them. I can shape my world.” The denial of agency in guardianship has scaled to society’s response. Going upstream will help both citizens subject to guardianship and society reclaim agency.
Pamela B. Teaster and Jeffrey E. Hall, 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).”
An elder justice focus on prevention empowers us to live our best lives and strengthens our social fabric by challenging ageist norms, promoting positive behaviors, and safeguarding our humanitarian and constitutional rights through our life course.
Guardianship is a state system designed to protect vulnerable citizens from harm. Too often, the system protects individuals (bad apples) and the courts (corrupting barrels) that abuse and exploit older adults and erode the foundation of trust that underpins society. Betrayal of trust in guardianship is a crime that “has the capacity to undermine the trust in the entire sociopolitical system,” notes Sally S. Simpson (2013). Reforming and then abolishing guardianship is a leverage point toward systems change for elder justice and a better future for ourselves, individually and societally. The Elder Justice Coordinating Council can lead the way in protecting citizens’ rights and lives.
Representative Claude Pepper, during his Congressional hearing on guardianship, subtitled “A National Disgrace,” emphasized (September 25, 1987; 31)
“We are not trying to meddle in somebody else’s business; we are trying to carry out our business, which is the protection of our people against abuses that are not being prevented by others.”