Older adults are the subject of a range of negative stereotypes and assumptions, such as:
Stereotypes about declining abilities and capacities of older persons contribute to paternalistic attitudes towards this group.
“Negative attitudes towards seniors do exist. We are treated as if we are invisible and our opinions don’t matter as we are too old. Some seniors are slower in answering and cannot be rushed or they get upset then can’t think. Younger people answer for us without giving us a chance to reply.”
– United Senior Citizens of Ontario
“There is poor understanding of the predominance of ability and independence among older adults in the community. Society fails to give credit to ability or to value the contributions of this segment of our community. We need to make the same effort to eliminate age discrimination, as we have made to promote multiculturalism and to eliminate homophobia.”
– Ontario Bar Association
B. Impact on the Law
Stereotypes, negative assumptions and paternalistic attitudes have a significant impact on the lives of older adults. They may impact on access to opportunities and services on an individual basis. They may also subtly influence policies, programs and laws, which then reflect, enforce and reinforce these negative attitudes and assumptions.
“Law reform needs to acknowledge the negative impacts of ageism – stereotypes and assumptions about age that lead to age-based discrimination and denial to older adults. Ageism can give rise to individual acts of discrimination, but can also have a broader impact on policies, programs and legislation that affect large sectors of society. Barriers faced by older persons are often “socially constructed”, that is, they are not a direct result of the aging process but rather the result of society’s response to aging. Examples of the impact of ageism can include the failure to respond to the needs of older persons and the failure to design systems and structures that are inclusive of older persons.”
– Ontario Human Rights Commission
Submissions to the LCO raised many examples of how ageism may operate through the law. In particular, the LCO’s attention was drawn to Ontario laws with respect to decision-making. Concerns were raised about current mechanisms for determining legal capacity, and that flaws in the system result in many older adults being denied control or participation regarding decisions about themselves of a highly personal nature.
The recent legislative reforms in British Columbia and Manitoba, and the provisions of the recently adopted United Nations Convention on the Rights of Persons with Disabilities (which Canada has not yet ratified) were pointed to as examples of approaches that respect the dignity, autonomy and participation of older persons by respecting the legal capacity of persons with intellectual and cognitive disabilities and providing opportunities for supported decision-making.
“Despite legislative developments in other jurisdictions and the UN Convention, long-standing negative stereotypes persist about the intellectual, and therefore legal capacity of people with intellectual disabilities, and similarly about older persons who experience cognitive or intellectual decline of their former capacities. In both cases, these stereotypes, along with assumptions about what intellectual capacities should characterize those who maintain legal capacity, are profoundly discriminating and devaluing. Too often, these stereotypes find their way into the administration of justice and result in individuals with intellectual disabilities, and older persons who have cognitive difficulties, losing their personhood before the law. We believe that the issue of personal decision making for health, personal care and financial/property decisions is of the utmost importance to the work of the LCO in this project.”
– Canadian Association for Community Living
One aspect of ageism is the failure to take older adults into account, and to fail to see their capacities, their needs, their contributions, or their very existence. Older persons may, in this sense, become “invisible”. It is therefore important to critically consider, not only existing laws, but also gaps in the law, where it has failed to address issues of importance to older adults. The Canadian Association for the Fifty Plus pointed to the lack of support and legal rights for caregivers, lack of attention to affordable and accessible housing for older adults, and lack of recognition of grandparents’ rights as instances of the failure to recognize the needs, contributions and circumstances of older adults. The British Columbia Law Institute pointed to the inadequacy of legal curbs on financial abuse of older adults.
As well, a neutral law may be administered in an ageist or paternalistic fashion. Negative attitudes or lack of information on the part of program providers or actors in the justice system may result in facially neutral or beneficial laws creating disadvantage or exclusion for older persons. For example, a number of submissions raised concerns regarding inadequate responses to elder abuse and the Advocacy Centre for the Elderly noted that the law respecting substitute decision-making is “repeatedly misapplied, usually in a paternalistic fashion”.
A key aspect of this Project is to identify how negative or paternalistic attitudes towards older persons may have shaped the development or implementation of the law. As such, further research will consider circumstances in which:
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