Using the Framework
This Framework for the Law as It Affects Older Adults is intended to guide the development and evaluation of laws, policies and practices so that they take into account the realities of the circumstances and experiences of older adults, and promote positive outcomes for these members of society. It is composed of principles and factors to take into account in applying the principles, and uses a step-by-step approach. It has been developed for use by:
policy-makers, courts and legislators;
advocacy organizations and community groups that work with older people and deal with issues affecting older adults; and
public and private actors that develop or administer policies or programs that may affect older adults.
The accompanying Final Report: A Framework for the Law as It Affects Older Adults sets out the research and analysis which form the basis for the Framework, and provides extended examples of its implications and implementation. Throughout the Framework, we have made links to the relevant sections of the Report. All of the referenced LCO documents may be found on the LCO website at http://www.lco-cdo.org.
This Framework is intended to be applicable across all laws and policies, including both those that apply specifically to older adults and those that will affect older adults as members of the general population. As it is general in this sense, some may find it helpful to adapt it to their own particular area of law or policy. It should be noted that, given the breadth and diversity of the law as it affects older adults, not all sections of the Framework will be relevant for every law, policy or practice.
It is not the purpose of this Framework to point to simple, definitive answers to all of the difficult issues that may arise in developing laws, policies and practices that may affect older adults. The law and the circumstances of older adults are complex and diverse. The nature of aging and our understanding of its personal and societal implications are constantly evolving. Rather, the Framework is intended to assist law and policy-makers to:
consider and apply a consistent set of principles in developing laws, policies and practices that may affect older persons;
ensure that potential barriers and sources of ageism in laws and policies are identified and addressed; and
take into account key aspects of the relationships of older adults with the law.
This Framework is the result of extensive research and public consultation. It is built upon and expands on work already done in this area, including the National Framework on Aging(NFA) and Seniors Policy Lens, the Special Senate Committee Report on Aging, the work of the Ontario Human Rights Commission (OHRC) on human rights and older age, international documents such as the United Nations International Principles for Older Persons (IPOP), and other important initiatives that have been undertaken in Canada and globally over the last fifteen years. It has roots in the legal foundations of the Charter of Rights and Freedoms, the Ontario Human Rights Code and the Accessibility for Ontarians with Disabilities Act (AODA), and as such has foundations in the legal obligations and policy commitments that bind governments. It does not replace current documents, but aims to build on these foundations and provide a basis for the further development of the law as it affects older adults. The LCO recognizes that this is an evolving area of the law, and this project is not intended as a final word on the subject, but as a contribution to ongoing research, analysis and debate.
For more information on the LCO’s approach to, and development of the Framework see the Final Report, Chapter I.
“Ageism”: For the purposes of this Framework, ageism may be defined as a belief system, analogous to racism, sexism or ableism, that attributes specific qualities and abilities to persons on the basis of their age. Ageism may manifest with respect to older adults in attitudes that see them as less worthy of respect and consideration, less able to contribute and participate in society, and of less inherent value than others. Ageism may be conscious or unconscious, and may be embedded in institutions, systems or the broader culture of a society.
For more information, see the Final Report, Chapter III.A.
“Diversity”: For the purposes of this Framework, diversity refers to a number of aspects of difference among individuals that may impact on the way that they encounter the law. It includes the wide range of identities that individuals may hold and that may intersect with the experience of aging, such as those related to sexual orientation, racialization, citizenship, Aboriginal identity, (dis)ability, and many others. It also includes the range of barriers that individuals may encounter that may complicate the experience of aging, such as those related to geographic location or place of residence, caregiving responsibilities, socio-economic status and others. It also recognizes that the experiences of each individual will be shaped by their life course, and that this may lead to differences that should be taken into account.
For more information, see the Final Report, Chapter II.C.2.
“The Law”: The term “law” as it is used for this project includes both statutes and regulations. It also includes the policies through which statutes and regulations are applied, and the strategies and practices through which statutory provisions, regulations and policies are implemented. As such, the implementation of laws is as important as their substance. Laws may be beneficial in intention and on paper, but in practice fall short of their goals or even have negative effects. Whenever the term “law” is used in this Framework, it is used in this broad sense.
For more information, see the Final Report, Chapter I.B.6.
“Older adults”: The terms “older adults” or “older persons” are used interchangeably in this Framework. For the purposes of this Framework, the LCO has adopted an expansive approach to defining “older adults” as including all those who have been identified as “old” or “older”, whether through legal and policy frameworks, social attitudes and perceptions, or self-identification.
For more information, see the Final Report, Chapter II.B.
“Substantive Equality”: Substantive equality is often contrasted with “formal equality”. It goes beyond simple non-discrimination. It includes values of dignity and worth, the opportunity to participate, having one’s needs met, and the opportunity to live in a society whose structures and organizations include them. It recognizes and responds to societal patterns that result in different outcomes on the basis of irrelevant characteristics, as well as real differences that inappropriately disadvantage members of a particular group (such as women’s capacity for reproduction). Substantive equality may require differential treatment in order to fulfil these values.
For more information, see the Final Report, Chapter III.B.3.
Principles for the Law as It Affects Older Adults
In order to counteract negative stereotypes and assumptions about older adults, reaffirm the status of older adults as equal members of society and bearers of both rights and responsibilities, and encourage government to take positive steps to secure the wellbeing of older adults, this Framework centres on a set of principles to be considered for the law as it affects older adults.
Each of the six principles contributes to an overarching goal of promoting substantive equality for older adults. The concept of equality is central to both the Charter of Rights and Freedoms and the Ontario Human Rights Code, The Supreme Court has recognized that governments may have a positive duty to promote the equality of disadvantaged groups. Observance of the principles ought to move law and policy in the direction of advancing substantive equality, and interpretation of the principles must be informed by the concept of substantive equality. Substantive equality is about more than simple non-discrimination, and includes values of dignity and worth, the opportunity to participate, and the necessity of taking needs into account. It aims towards a society whose structures and organizations include marginalized groups and do not leave them outside mainstream society
There is no hierarchy among the principles, and although they are identified separately, the principles must be understood in relationship with each other. The principles may reinforce each other or may be in tension with one another as they apply to concrete situations.
Respecting Dignity and Worth: This principle recognizes the inherent, equal and inalienable worth of every individual, including every older adult. All members of the human family are full persons, unique and irreplaceable. The principle therefore includes the right to be valued, respected and considered; to have both one’s contributions and one’s needs recognized; and to be treated as an individual. It includes a right to be treated equally and without discrimination.
Fostering Autonomy and Independence: This principle recognizes the right of older persons to make choices for themselves, based on the presumption of ability and the recognition of the legitimacy of choice. It further recognizes the right of older persons to do as much for themselves as possible. The achievement of this principle may require measures to enhance capacity to make choices and to do for oneself, including the provision of appropriate supports.
Promoting Participation and Inclusion: This principle recognizes the right to be actively engaged in and integrated in one’s community, and to have a meaningful role in affairs. Inclusion and participation is enabled when laws, policies and practices are designed in a way that promotes the ability of older persons to be actively involved in their communities and removes physical, social, attitudinal and systemic barriers to that involvement, especially for those who have experienced marginalization and exclusion. An important aspect of participation is the right of older adults to be meaningfully consulted on issues that affect them, whether at the individual or the group level.
Recognizing the Importance of Security: This principle recognizes the right to be free from physical, psychological, sexual or financial abuse or exploitation, and the right to access basic supports such as health, legal and social services.
Responding to Diversity and Individuality: This principle recognizes that older adults are individuals, with needs and circumstances that may be affected by a wide range of factors such as gender, racialization, Aboriginal identity, immigration or citizenship status, disability or health status, sexual orientation, creed, geographic location, place of residence, or other aspects of their identities, the effects of which may accumulate over the life course. Older adults are not a homogenous group and the law must take into account and accommodate the impact of this diversity.
Understanding Membership in the Broader Community: This principle recognizes the reciprocal rights and obligations among all members of society and across generations past, present and future, and that the law should reflect mutual understanding and obligation and work towards a society that is inclusive for all ages.
For more information on the LCO’s Principles for the Law as It Affects Older Adults, see the Final Report, Chapter III.B.
Implementing the Principles
As the principles are relatively abstract and aspirational, challenges may arise in their implementation. For example, resources are not unlimited, so that it may not be possible to fully implement all principles immediately. In some cases, the principles may point to different solutions for the same issue. The LCO suggests the following factors be taken into account in the application of the principles.
Taking the Circumstances of Older Adults into Account: While it is generally recognized that older adults make up a significant and growing proportion of Canada’s population, and that they may have needs, circumstances and experiences that differ from those of younger members of society, laws do not always systematically and appropriately take these needs and circumstances into account. As a result, laws may have unintended negative effects on older adults. In some cases, stereotypes or negative assumptions about older persons may shape the degree to which or the way in which older adults are taken into account. As a result, the law may be ageist in its impact. As part of respecting and implementing the principles, the circumstances of older persons must be taken into account in the development, implementation and review of all laws, policies and practices that may affect them.
While aging is often popularly viewed as an inevitable biological process, it is important to remember that the experience of aging is actually a multidimensional process, shaped by social attitudes about growing older and about older persons, the social structures and institutions (including laws and policies) that surround older adults, and by the lives that older adults have lived prior to entering “old age”. Any description of aging and older adults is therefore necessarily complex, as is the case for all life stages.
Life Course Analysis: In applying the principles, it is important to consider older adults as in a phase of “the life course”. Older adults have complex needs and circumstances that are based on a lifetime of experiences and relationships that helped to shape who they are and the choices available to them. Barriers or opportunities experienced at earlier stages of life will have had consequences that reverberate throughout life. The life course of an individual will shape the way in which that individual encounters a particular law; in return, laws will significantly shape the life course of that individual. That is, the impact of laws on older persons must be understood in the context of every stage of their lives, and how these stages relate to each other.
Gender Based Analysis: It is particularly important to consider the experience of aging and older age through a gender lens. Demographic patterns globally indicate a longer life for women, and give rise to gender-specific issues. For example, because of longer life expectancies and because women tend to marry older men, women are more likely than men to be widowed and living alone, which has a number of implications for income, caregiving and living arrangements. Older women also face particular negative stereotypes and dismissive treatment related to their age and gender.
Treating Law as Person-Centred: Law is often developed, implemented and analyzed as a set of separate and largely independent areas, such as family, criminal and real estate law. A person-centred approach highlights the ways in which individuals encounter law – often as a confusing web of complex and fragmented systems. This approach requires that laws be developed and implemented in a way that respects the full experience of the individuals that will encounter them. It requires law to respond to individuals as persons with diverse needs and identities, and therefore to take into account the ways in which individuals transition through the life course or between systems.
Inclusive Design: While in some cases it may be necessary or most appropriate to design specific laws, practices, programs or policies to meet the needs of older adults, in most cases an approach that is responsive to individuals at various stages of the life course and incorporates older adults into the overall design of the law will be most effective. Younger as well as older adults will benefit from a focus on dignity, autonomy, inclusion, security, diversity and membership in the broader community in the design of laws. Many, if not most of the measures required to fulfil the principles and to make the law more fair, accessible and just for older adults will also make the law more fair, accessible and just for others. An inclusive design approach to laws, policies and practices can make the law more effective overall.
Effective Implementation of Laws: Even where laws are based on a thorough and nuanced understanding of the circumstances of older adults and aim to promote positive principles, their implementation may fall far short of their goals. This phenomenon, sometimes referred to as the problem of “good law, bad practice”, is not uncommon in the law as it affects older adults. The Report of the United Nations Expert Group Meeting on the Rights of Older Persons specifically urges governments to “close the gap between law and implementation of the law”. There are two aspects to this issue: implementation strategies for the law, and mechanisms for ensuring that older adults are adequately able to access and enforce their rights.
Progressive Realization: The fulfilment of the principles is an ongoing process, as circumstances, understandings and resources develop. Efforts to improve the law should be continually undertaken as understandings of older persons and the aging process evolve, or as resources or circumstances make progress possible. And of course, even where one aspires to implement these principles to the fullest extent possible, there may be constraints in doing so, such as resource limitations or competing needs or policy priorities. Therefore, a progressive implementation approach to the principles may be undertaken, and should ensure that there is a focus on continuous advancement, principles are realized to the greatest extent possible at the current time while regression is avoided, and concrete steps for future improvement are continually identified and planned.
Applying the Concept of “Respect, Protect, Fulfil”: In the realm of international human rights law, the concept of “respect, protect, fulfil” is used to analyze and promote the implementation of human rights obligations. In this analysis, states must address their human rights obligations in three ways:
The obligation to respect – States parties must refrain from interfering with the enjoyment of rights.
The obligation to protect – States parties must prevent violations of these rights by third parties.
The obligation to fulfil– States parties must take appropriate legislative, administrative, budgetary, judicial and other actions towards the full realization of these rights.
This approach can be useful in analyzing and promoting the realization of the principles in the law as it affects older adults, or indeed any group. At minimum, governments must not violate the principles (i.e., they must respect and protect them), but complete fulfillment of the principles may be progressively realized as understandings and resources develop.
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