To conduct a meaningful evaluation, it is essential to identify how and which older adults may be affected by a particular law. In some cases, laws are specifically targeted to older persons, or some group of older persons. Seniors’ social housing, and the senior drivers’ licence renewal program are examples of these. As well, older persons are, by definition, affected by laws of general application. In some cases, laws of general application may affect older adults or some group of older adults differently or disproportionately compared to others. This section considers how specific instances of the ways in which laws may affect older persons may interact with the principles.
Applying the Principles to Step 4
Note: “Law” here refers to law, policy and practice, as appropriate.
There are a number of laws that specifically target older persons – in some cases through age-based eligibility criteria and in others by focusing on an issue, such as long-term care, that mainly affects older persons. Some of these target older persons in general, and others target some particular group of older persons. These laws may include definitions or criteria setting out who is affected by the restrictions or has access to the rights or entitlements in the law. These criteria or definitions must be carefully scrutinized for stereotypical or ageist assumptions or attitudes that violate the principle of respecting dignity and worth. There is a risk that age-based criteria may be founded on or perpetuate ageist attitudes about the abilities, worth and contributions of older persons, thereby undermining dignity and worth and potentially having adverse consequences for the attainment of the other principles. On the other hand, age-based criteria may also be effective at addressing the particular circumstances of older adults and thereby advance fulfilment of the principles. Laws of general application may, of course, affect the attainment by older adults of any of the principles.
As older persons are often invisible in the law development process, the effects on them of a particular law of general application may not be identified or considered. This may be especially true for some groups of older persons who are particularly marginalized, such as Aboriginal older adults or those who have aged with disabilities. The principles of promoting participation and inclusion, and of recognizing diversity require that older adults, in all their variety, be carefully considered whenever a law of general application is designed or reviewed, to ensure that it takes into account their particular needs and circumstances. Failure to take into account the particular needs of older adults or some group of older adults may negatively affect their security.
For information on applying the principles to targeted laws and to laws of general application, see the Final Report, Chapter IV.B-E.
QUESTIONS FOR CONSIDERATION IN APPLYING STEP 4
If the law specifically targets older persons or a particular group of older persons:
a. does the law reflect the principle of membership in the broader community, and incorporate an understanding of older persons as citizens with both rights and responsibilities?
b. has consideration been given to the most appropriate way to tailor the program in light of levels of heightened risk or disadvantage, potential benefits and available resources?
c. has an inclusive design approach, meaning one that applies to everyone but where necessary recognizes the particular circumstances and needs of older adults, been considered as an alternative?
If the law uses age-based criteria:
a. is the purpose of the criteria in harmony with the principles? Might the effect of the law undermine the principles, for example by reinforcing age-based segregation or stereotypes?
b. are the criteria based on current and relevant research into the needs and circumstances of older adults?
c. do the criteria recognize the diversity of older adults, for example by making provision for individual assessment or for individuals to challenge their inclusion or exclusion from the group?
If the focus of the age-based law is on protecting the security or promoting opportunities for younger persons, has the impact of the restrictions on older persons been fully taken into account and the needs of older adults been weighed equally with those of younger persons?
Other Types of Eligibility Criteria
Has the impact of non-age-based eligibility criteria on older adults, or on some groups of older adults been taken into account? For example:
a. if the law uses disability-based eligibility criteria:
i. does the definition of disability take into account the types of impairments disproportionately affecting older adults?
ii. do the criteria take into account the ways in which the experience of disability or impairment are shaped by the life course?
iii. do the criteria take into account the ways in which assumptions and attitudes regarding aging may affect the treatment and experiences of older persons with disabilities?
b. if the law uses income-based criteria, do the criteria take into account current information and research on the economic status of older adults in all of their diversity and the particular financial circumstances of some groups of older adults, such as
i. the effect of withdrawal from the workforce on financial security?
ii. how the economic status of some older adults, such as women, racialized individuals, and those who have lived with disabilities throughout their lives may be shaped by unequal life experiences?
Laws of General Application
If the law is one of general application, might it, taking the circumstances of older adults into account, affect older persons differently or in greater numbers than the general population?
If the law is one of general application, might it affect some particular groups of older adults differently or in greater numbers than the general population? For exampl
a. does the law have a significant effect on persons who live in low-income? If so, given the particular circumstances of older persons who live in low-income, what might be the effect on this group?
b. if the law has a different or disproportionate effect on older persons in general, has consideration been given to how this might differ for older men and women?
c. if the law has a different or disproportionate impact on older persons in general, has consideration been given to how that impact might differ for older persons who have lived with disabilities throughout their lives, or developed disabilities with age?
d. has consideration been given to how the law might affect older persons who are from historically marginalized communities, such as for example Aboriginal or racialized older persons, or those who are LGBTQ, newcomers to Canada or Francophones, particularly given how inequality may have shaped their life courses?
e. has consideration been given to how the law might affect older persons facing barriers related to their family or marital status, area of geographic residence (such as in rural or remote areas) or socio-economic status?
If differential impacts have been identified, have they been addressed?
APPLYING THE FRAMEWORK: EXAMPLES OF THE RELATIONSHIP BETWEEN THE PRINCIPLES AND THE SCOPE OF THE LAW
Age-Based Restrictions in the Workplace Safety and Insurance Act
When the Ontario Human Rights Code was amended to remove protections for mandatory retirement requirements, provision was made to maintain age-based criteria both in employment benefits under the Employment Standards Act and in the Workplace Safety and Insurance Act (WSIA). For example, while the WSIA places a limited duty on employers to re-employ injured workers, this duty ends at the point when a worker reaches age 65. As well, the WSIA places age 65 limits on loss of earnings benefits. These provisions may have a devastating impact on the economic security of older workers who become injured. They appear to assume that older workers would necessarily have left the workforce at the age of 65, ignoring current trends, individual circumstances and the contributions of older workers to their workplaces, and as such undermine the dignity and worth of older workers.
For information on eligibility criteria and the WSIA, see the Final Report, Chapter IV.B.
Laws of General Application: Older Persons and the Revocation of Wills Upon Marriage
At law, the standards for the legal capacity to marry and the legal capacity to make a will have evolved separately. The test for legal capacity to marry is different from, and lower than, the test for the legal capacity to make a will, reflecting differences in the issues at stake in each kind of decision. Therefore, it is quite possible for an individual to marry who does not have the capacity to make a will. To complicate the matter, under the SLRA, marriage automatically revokes a previously existing will, unless that will indicates that it was developed in contemplation of marriage. The differences between the capacity to marry and the capacity to make a will can impose particular unintended burdens on older adults. Older adults are more likely than the general population to be affected by conditions which affect their testamentary capacity, but which may not affect their capacity to marry. Practically speaking, the individual who retains the capacity to marry but not the capacity to draw a new will, will be unable to draw a new will after a marriage. That individual then loses control of his or her testamentary dispositions, and must then die intestate.
Demographic information indicates that older adults are more likely to have complicated familial arrangements, and thus complicated obligations and wills. Divorce and re-marriage, which introduce complex family obligations, are increasingly common. The dynamics of the step-families created by subsequent marriages are not captured by intestate succession. Further, subsequent marriages later in life can add a further layer of complexity to an individual’s testamentary dispositions. These laws of gener