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There is a growing consensus in the United States and abroad recognizing the right to “legal capacity”—the right to make legally binding decisions for oneself—as a basic human right. Despite this recognition, adult guardianship—the state court procedure by which a person is declared incapacitated and stripped of decision-making rights—remains a widely used tool, particularly for older adults who have suffered financial exploitation or loss. For this population, guardianship is considered an unpleasant yet necessary remedy to address their financial harms. But what if the cure does not really work as intended, while other, less intrusive means could prevent and redress elder financial exploitation without stripping older persons of their rights?

This Article acknowledges that elder financial exploitation is a significant problem that causes great distress and harm but recognizes that, to date, many responses have been distorted by ageism and a reluctance to allow older adults some “dignity of risk.” Applying lessons from the lived experiences of older adults, the Article takes a clear-eyed look at how guardianship is being asked to solve problems it may not, in fact, be capable of solving. In doing so, the Article challenges the view that elder financial exploitation and loss is an individual problem that is effectively addressed by transferring decision-making rights to a surrogate. Instead, the Article calls for systemic measures to prevent elder financial harm and more robust remedial measures that do not remove a person’s decision-making rights.

Publication Date

2021

Volume

24

Publisher

University of Pennsylvania Journal of Law and Social Change

First Page

149

Disciplines

Law

Included in

Law Commons

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