by Philip C. Marshall
Summary
- Socialite Brooke Astor, who at age 104 had Alzheimer’s, had a son who was convicted of 14 counts of elder abuse against her; now, her grandson advocates for senior lawyers to recognize and challenge when guardianship proceedings are protecting one’s legal rights or stripping them away.
- Guardianship can strip adults of nearly all legal rights through procedures that fall below the constitutional standards applied to far less consequential deprivations—a gap senior lawyers are positioned to recognize and challenge.
- The disability rights framework of supported independence—scaffolding without confiscating sovereignty—offers a principled standard for measuring whether the law is honoring or merely managing human vulnerability.
- Senior lawyers bring irreplaceable authority to guardianship reform: professional credibility, lived proximity to aging, and the persuasive precision of those who have insisted on reasoned process throughout their careers.
The system worked. That is what has troubled me ever since.
In 2006, I petitioned a New York court to protect someone I loved—my grandmother, Brooke Astor, then 104 years old. The court agreed. What I could not have fully articulated at the time, and what I have spent the years since trying to name, is this: The same system capable of protecting her was also capable of erasing her by removing her rights. The difference was not the law itself. It was who was present, who was credible, and who could afford to persist.
You already know how to spot when due process is being honored and when it is being performed. You have spent careers insisting on reasoned findings, reviewable records, and procedural integrity. This piece asks you to point that same professional discernment at a system you may not yet have examined closely—and at a life stage that is no longer abstract.
The System Lawyers Are Built to Question
Guardianship is widely understood as a protective remedy—a last resort, carefully applied. In practice, it can operate as a near-total reassignment of legal agency: control over residence, medical decisions, finances, relationships, and access to courts transferred to a third party, sometimes effectively permanently.
The doctrinal label is “protective.” But protection is a purpose, not a constitutional exemption.
When the interests at stake in other legal contexts are this sweeping—civil commitment, termination of parental rights, major deprivations of liberty—the system demands heightened procedural protection and reviewable reasons. Guardianship touches interests at least as foundational, and yet the procedural floor is often among the lowest the civil system tolerates: truncated hearings, conclusory findings, reliance on untested evaluations, and an appellate posture that treats judicial discretion as self-justifying.
A right without a workable remedy is not a right in practice. It is an aspiration. And the people most likely to need the remedy are often least able to use it—lacking funds for independent counsel, unable to initiate proceedings without access to communications or resources held by the very guardian they would challenge, and facing health timelines that outrun appellate calendars.
You recognize this pattern. You have argued against it in other courtrooms.
A Life-Course View that the Law Has Not Caught Up With
There is a structural gap in how the law thinks about personhood over time.
The law is strong in the middle—in the world of contracts, commerce, torts, and ordinary civil procedure, where the idealized independent adult is assumed. But the human life course does not stay in the middle. It begins in dependency. It often returns to dependency. Disability does not observe a schedule—it may be present from birth, arrive through illness or injury, or accumulate gradually with age. If the law protects autonomy only for the fully capable adult at full capacity, it is not a code of justice. It is a code of convenience.
The disability rights movement understood this before elder law did. Its core insight—that the problem is often not the person but the environment, and that impairment is a reason to provide supports rather than reduce rights—is the civil rights framework most explicitly built around the human condition as it actually is: interdependent, fluctuating, and embodied.
That framework has a name that is useful here: supported independence. Not substituted judgment, where the system replaces the person. And not only supported decision-making, which is already on the books in a majority of states as a less restrictive alternative, though chosen infrequently by courts, and tends to remain focused on the transaction rather than the person. Supported independence adds the relational dimension: the recognition that autonomy is not a solo achievement but a shared one, sustained by the people and institutions that surround us.
It is the proposition that the law should supply scaffolding without confiscating sovereignty. That vulnerability is not a reason for erasure but a reason for reinforced rights.
When the Preamble to the Constitution named among its founding purposes the obligation to “secure the Blessings of Liberty to ourselves and our Posterity,” the founders were not drafting a rule of decision. They were naming what the whole enterprise of law is for—the frame within which every code, every procedure, every adjudication should be measured. Supported independence belongs in that tradition. It is not a statute to be litigated or a mechanism to be administered. It is a standard—and the question this piece puts to the profession is whether the system we have built is finally ready to be measured against it.
What Senior Lawyers Already Know How to Read
This is not merely a philosophical aspiration. It has operational content—and senior lawyers are among the best-positioned people in any setting to recognize when it is being honored and when it is being ignored.
- Presume agency. Justify every restriction. You have argued this in other contexts. The burden belongs on the system to prove the necessity of limitations, not on the person to prove their worthiness of rights they have never forfeited.
- Offer supports before substituting judgment. Less restrictive alternatives—advance planning instruments, supported decision-making arrangements, limited financial assistance, care navigation, community-based services—must be real options, not rhetorical gestures. A system that names them without resourcing them has not offered an alternative. It has described one.
- Make findings specific and functional. Capacity is not binary. A finding that someone “lacks capacity” without specifying what they cannot do, which rights are affected, and why narrower measures are insufficient is not a legal determination. It is a conclusion dressed as one.
- Records should be reviewable, and reasons should be transparent. Confidentiality can be protected through proportionate means. Opacity that forecloses accountability has not protected the person. It has protected the proceeding.
- Appoint counsel that is genuinely independent. Counsel that is appointed but not resourced, present but not empowered, is a procedural gesture. The person’s voice is not a gesture. It is the constitutional center.
- Make the exit real. Restoration cannot be mythical. Periodic review, a meaningful path to modification or termination, and a presumption that rights return when justification fades—these are not generous additions to the system. They are what make it a legal system rather than an administrative one.
Why This Audience, and Why Now
Joan Erikson’s contributions to the developmental model she built alongside her husband Erik are too often absorbed into his name rather than credited in her own. In her nineties, after Erik’s death, she described what she called a ninth stage of life—an account of vulnerability and trust at the far edge of experience. At its center she placed gerotranscendence: a shift in very late life toward a more expansive orientation, freed from what no longer matters. It remains among the most courageous acts of scholarship in the field.
At its center is a question about trust—not the trust of infancy, which is a question of caregivers, but the trust of late life, which is a question of systems. Can I trust the institutions that claim to protect me? Can I trust that help will not cost me myself?
For lawyers in the Senior Lawyers Division, this is not an abstraction. It is either approaching or already present in the lives of friends, spouses, siblings, clients, and—with honesty—ourselves. The lawyer who has spent decades insisting on reasoned decision-making in other contexts is in the best possible position to bring that same insistence to this one.
Not from a podium. In conversation—at ABA gatherings, with family members navigating a diagnosis, with colleagues whose clients are aging, with journalists and legislators who have not yet heard the argument made with professional precision by someone who has lived it from the inside.
That is the generative move available to this audience. Not a new doctrine for its own sake, but a more honest continuity between what the law promises and what it actually delivers—to the clients you have served, to the people you love, and eventually, if you are fortunate to live long enough, to yourself.
The law’s highest function is not to manage human vulnerability. It is to honor it.
That is the kind of code worthy of the next 250 years.
Full Article & Source:
What Will Guardianship Law Do When You Can No Longer Stand Alone? Lessons from the Brooke Astor Case
See Also:
Family, friends, and neighbors are at the heart (and the heart) of elder justice
‘The Ultimate Betrayal’: Grandson Of Victim Explains Signs Of Elderly Financial Abuse
Brooke Astor’s grandson makes case for ‘Elder Abuse’ postage stamp
