I. Introduction2017-03-03T18:30:47+00:00

A.              Background

1.               The LCO’s Project on the Law as It Affects Older Adults

This is the Final Report for the LCO’s project on the law as it affects older adults, and sets out the results of the LCO’s research and consultations. 

This project is based in part on a proposal received by the LCO soon after its inception from Professor David Freedman, a professor of Elder Law at Queen’s University, Faculty of Law. 

Demographic changes have in recent years drawn increased attention to the needs and circumstances of older adults. As has been widely noted and as is further detailed in Chapter II of this Report, Canada’s (and Ontario’s) population, along with that of many other nations, is aging significantly. The number of Canadians over the age of 65 is expected to increase from 4.2 million in 2005 to 9.8 million in 2036, and their share of the population will almost double, from 13.2 per cent to 24.5 per cent.[1] This demographic shift has significant implications for all areas of public policy. As the Senate Special Committee on Aging has stated, 

[t]he challenge of an aging population goes far beyond the responsibilities of the federal level of government as defined in the Constitution. It must be a concern for every Canadian, for every province, territory and municipality, for every business large and small, for every volunteer organization and NGO.[2]

With the aging of Canada’s population, the importance of developing sound legal and public policy approaches to issues affecting older Canadians will continue to grow. 

Despite pioneering work done by organizations such as the Advocacy Centre for the Elderly (ACE) and the Canadian Centre for Elder Law (CCEL), relatively little attention has as yet been paid to the overall relationship of older Canadians with the law. While substantial and important work has been done on specific elder law issues, such as consent and capacity laws, mandatory retirement and elder abuse, there is generally a dearth of Canadian research on how older adults access the law and the barriers they face in doing so, and on how the law as whole might be made more effective, fair and accessible for older adults.  As well, research and policy development related to older adults and the law has focused on laws that explicitly or obviously disproportionately affect older adults, such as age-based drivers’ license requirements or legal issues regarding long-term care, while less attention has been paid to how laws affecting the general populace may also have a differential impact on older persons.  

The LCO’s Board of Governors therefore concluded that this is an area of law that would benefit from a comprehensive analysis, and the development of a more holistic and principled approach. A coherent evaluative analysis for this area of the law can assist in raising the profile of under-examined issues and in spurring and supporting law reform in the many areas where it is needed. 

As the Federal/Provincial/Territorial Committee for Seniors pointed out in their Seniors’ Policy Handbook

[a]pplying a seniors’ policy lens can help to ensure that:

  • the needs and values of seniors are respected
  • the contributions of seniors in all aspects of life are acknowledged
  • the diversity of the seniors’ population is taken into consideration
  • activities that affect seniors are approached in a holistic manner that considers linkages and interactions with other policies and programs
  • the cumulative impact of change and the implications for seniors have been thoroughly considered  
  • the concerns and issues of today’s seniors and of coming generations of seniors are considered.[3]

Based on the proposal and the LCO’s internal research, the LCO’s Board of Governors approved a multi-year project to develop a coherent framework for the law as it affects older persons. The aim of the LCO’s project on the law as it affects older adults is not to recommend specific reforms to particular laws affecting older persons, although certainly law reform is needed in many areas. Rather, the purpose of the project is to articulate a set of principles and considerations that may form the basis of a coherent analytical framework for this large and diverse area of the law. Given the barriers that older adults face in accessing justice, the principles and considerations adopted should not only systematize this area of the law, but also make it fairer, more accessible and more effective. The ultimate aim of this project is to build on work that has already been done to develop a sound basis for evaluating current laws and policies and developing new ones, to ensure that they respect the rights and circumstances of older persons.   

The Framework developed through this project may be of assistance to those who develop laws and policies, such as legislators, policy-makers and private actors who develop policies and programs affecting older adults; to those who interpret laws, such as courts and tribunals; and to those who identify needs and advocate for reforms. 

As is further described below, this project is closely related to the LCO’s similar project on the law as it affects persons with disabilities.[4] A significant minority of older persons live with disabilities, whether because they have aged with disabilities or because they have developed disabilities as they aged. As well, there is a rich literature in the area of critical disability studies and the law, some facets of which can inform the development of an anti-ageist approach to the law, as can equality theory more generally. Therefore, while there are many areas where the two projects diverge, they have been developed in tandem and have shed light on each other during that process.

 

2.               Shaping the Project: The Process

Given the broad and multi-faceted issues raised by this project, it was planned as a multi-year, multi-stage project.  

Older adults are an extremely diverse group, ranging widely in histories, identities and circumstances. Every law that affects the general populace will affect older adults, sometimes in ways that are similar to how it affects others but often differently, and, importantly, often in very different ways for various groups of older adults. The area of “elder law” itself – that area of law dealing specifically or disproportionately with older adults – is extremely complex. As just one example, the law relating to capacity and substitute decision-making has itself been the subject of numerous law reform endeavours and voluminous reports.   

Recognizing the challenges inherent in this project, the LCO therefore commenced its work with a “Pre-Study” process, aimed at identifying themes, issues and approaches for the overall project.  In May of 2008, the LCO launched the Pre-Study with a Consultation Paper: Shaping the Project.[5] This Paper was posted on the LCO website and distributed to a range of academics and researchers, legal clinics, community organizations and government bodies. The pre-study Consultation Paper provided a brief overview of themes and issues identified through its preliminary research, and requested feedback from stakeholders on the scope and design of the Project, including key issues and principles. The LCO received written submissions from 21 organizations, and held meetings with six organizations and individuals. 

The LCO reported on the results of this Pre-Study and its initial research in a second Consultation Paper issued in December 2008.[6]  In this Consultation Paper, the LCO adopted five preliminary principles: independence and autonomy; dignity and respect; participation and inclusion; security; and respect for diversity. It also identified several thematic areas for focus, including ageism and the law, the relationships of older adults, and the living environments of older adults. This input shaped the considerable research undertaken by the LCO for this project. 

In January 2009, the LCO issued a Call for Research Papers on these themes, in order to supplement its own research and to gather diverse perspectives on key issues. Through this Call for Papers, the LCO funded three research papers: one from ACE on access to the law and congregate living; a second by Margaret Hall on developing an anti-ageist approach to the law in the context of elder abuse and substitute decision-making frameworks; and a third by Charmaine Spencer on ageism and age discrimination in health and housing law. These papers are available on the LCO’s website at http://www.lco-cdo.org

In the fall of 2010, the LCO co-hosted the 2010 Canadian Conference on Elder Law, in partnership with the CCEL (affiliated with the British Columbia Law Institute) and ACE. The Conference brought together a wide range of academics and experts, professionals, service providers, and community and advocacy organizations to consider the themes of ageism and the law, law reform and older adults, and access to justice for older adults.  Approximately 100 presenters and speakers shared their research and ideas, and the Conference resulted in a significant number of new papers, which are available through the LCO website at http://www.lco-cdo.org

To guide its work, the LCO formed an Advisory Group which provides advice on outreach and on approaches to the substantive issues at stake in the process. A full list of Advisory Group members may be found in the front matter of this Report.  The LCO would like to extend its sincere thanks to the members of the Advisory Group for their invaluable assistance in the development of this Project, and their dedication amidst their many commitments.  

In the summer of 2011, the LCO released an Interim Report, which included a Draft Framework for an Anti-Ageist Approach to the Law. These documents were widely circulated, and the LCO conducted public consultations through the fall of 2011. These consultations included:

  1. the receipt of submissions from several individuals and organizations;
  2. a consultation questionnaire distributed to individuals across the province, which received almost 300 responses;
  3. six focus groups (totaling 90 individuals) with groups of older adults, including newcomers, residents of long-term care homes, rural residents, women, informal caregivers, and lesbian, gay, bisexual and transgendered older adults;
  4. a full-day Stakeholder Event which brought together approximately 30 experts and organizational representatives from a range of perspectives;
  5. a small number of individual interviews; and
  6. a meeting with the members of the Ontario Seniors’ Secretariat Liaison Group.  

A full list of organizations and experts participating in the consultations can be found in Appendix B of this Report. 

Through this process, the LCO gathered extensive information on the law and older adults. While not all of the information gathered and perspectives shared could be specifically referenced in this Report, they are reflected in the ultimate outcomes of this project. 

 

3.               The Sister Project – Persons with Disabilities and the Law

One of the other initial LCO projects approved by the Board of Governors was a project on the law as it affects persons with disabilities. The aim of that project was to develop a coherent framework for the law as it affects individuals with disabilities by articulating a set of principles and questions, rooted in the lived experience of these individuals, that could form the basis of a consistent analytical framework for this diverse and important area of the law. 

Given the similarity in their aims, the project on the law and older persons and the project on the law and persons with disabilities were considered as “sister projects” and assigned to the same Project Head to ensure consistency in approach, the opportunity to learn from each project aspects that could inform the other, and appropriate consideration of overlapping issues.  

Preliminary work on the Law and Persons with Disabilities project began in early 2009 – that is, several months after work commenced on this project. The projects have proceeded in tandem and have been completed within a few months of each other. As a result, it has been possible for the two projects to build on each other. 

As is further detailed in Chapter II of this Report, there is a challenging relationship between impairment, disability and aging. There is a tendency to inappropriately conflate aging and disability, as well as a ‘normalizing’ of impairment during aging, so that impairment in older age may not lead to a perception of “disability” as would be the case for a younger person. There is further a tendency to overlook the experiences of those who have aged with a disability and how the experiences of this group differ from those of individuals who age into disability.  

There are significant parallels between the experiences of older adults with the law and those of persons with disabilities (considered as distinct groups). Both groups incorporate considerable diversity despite general assumptions of homogeneity. Both experience a range of negative attitudes and stigma, and have a disproportionate experience of disadvantage and marginalization. As well, both groups are subjects of extensive laws and bureaucracies intended to address their distinctive experiences, and so share the experience of dealing with the complexities, fragmentation and unintended barriers associated with such laws, programs and policies. There are also, of course, significant differences between the two groups. While both groups are subject to stigmas and stereotypes, there are significant differences in the particular attitudes and barriers experienced by each group. The effect of the life course on circumstances and identities cannot be ignored – particularly for those older adults who have not experienced discrimination or marginalization until the onset of older age. 

The Frameworks therefore must take careful account of both the similarities and the differences, and resist the common tendency to conflate the two. At the same time, the Frameworks must be able to address those who fall within both groups – those who have aged with disabilities and those who have aged into disabilities – as well as recognizing the differences between these two experiences. Finally, the Frameworks must reject both ableism and ageism, as well as looking for opportunities, where appropriate, to apply novel or successful concepts or approaches from one group to the other.

 

4.               The Primary Goal: Advancing Substantive Equality in the Law

The concept of “ageism”, and the accompanying idea that older persons may be the subject of systemic disadvantage is relatively recent, generally being traced back to the work of Dr. Robert Butler beginning in the late 1970s. There has been growing recognition of the role of negative attitudes and stereotypes in shaping the experiences and treatment of older persons, and the importance of addressing these attitudes and stereotypes in order to advance substantive equality for older persons. 

In keeping with developments in areas such as disability and the law, and gender and the law, some have begun to conceptualize ageism, not only in terms of individual attitudes, but also in terms of structures, systems and institutions. Ageism may be reflected in the issues the law does or does not address, in the assumptions that are embedded in the law and the structures that are designed to implement the laws.  

Thus, older persons, like other groups who experience negative attitudes, stigma and systemic disadvantage, may benefit from approaches focused on advancing substantive equality. 

Given the mandate of the LCO to address the relevance, effectiveness and accessibility of the law, considerations of how ageism may operate in and through the law and of how substantive equality may be advanced for older persons are central to the LCO’s development of a framework for the law as it affects older persons, and are dealt with in detail in Chapter III of this Report.    

 

5.               This Final  Report and Framework 

The LCO’s Framework for the Law as It Affects Older Adults, the culmination of this project, is appended to this Report. This Framework is intended to guide the development and evaluation of laws, policies and practices to ensure that the realities of the circumstances and experiences of older adults are taken into account, and that laws, policies and practices 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.

This Report sets out the research and analysis which form the basis for the Framework, and provides extended examples of its implications and implementation.  It is the product of the LCO’s extensive research and consultation as outlined above. It outlines in detail the key components of the LCO’s proposed approach to the law as it affects older persons. These include

  • the circumstances and characteristics of older adults to consider for purposes of inclusive design and targeted programs;
  • approaches to identifying and addressing negative stereotypes and attitudes about older persons in the law;
  • principles for advancing substantive equality for older persons;
  • an analysis of the ways in which the law affects older adults; and
  • strategies for enhancing access to the law for older adults. 

Finally, an example of the application of this analytical Framework is set out with respect to the Ontario law regarding access to home care supports.  

In order to provide context and nuance to the analysis and the Framework, we have included throughout detailed examples of particular issues from the law as it affects older adults, whether as illustrating common barriers in the law or best practices for an approach to the law that advances substantive equality. The examples are selected from issues that were identified through our research and consultation as being of particularly urgent concern to older adults. 

 

B.              Approaches to Developing a Framework for the Law as It Affects Older Persons

In developing the Framework, the LCO has employed a number of approaches as starting points. 

 

1.                The LCO’s Mandate and Access to Justice

The LCO’s mandate is, in part, to recommend law reform measures to enhance the relevance, effectiveness and accessibility of the law, and to improve the administration of justice through clarification and simplification of the law; in short, to increase access to justice. 

In developing a framework for the law as it affects older adults, the LCO must therefore consider issues not only of consistency, clarity and efficiency, but also such questions as the following:

  • Does the law address the issues of importance to older adults? Does it do so in ways that are meaningful?
  • Does the law effectively address the needs and circumstances of older adults? What principles and approaches can best ensure that the law is effective in addressing the needs and circumstances of older adults? Where the law is ineffective, do the shortfalls result from the design of the law, or from its implementation?
  • What do “access to the law” and “access to justice” mean for older adults?  What barriers do older adults experience in accessing the law? What are best practices for promoting access to the law for older adults? 

 

2.               Building on What Has Been Done

In recent years, there have been several important initiatives relevant to the law as it affects older adults. The LCO has aimed to incorporate and, where possible, synthesize the insights and frameworks employed by these initiatives as a foundation for this project. In particular, the LCO’s project has been shaped by the following initiatives:

The National Framework on Aging (NFA)[7] and Policy Development Guide:  The NFA was developed jointly by the Federal/Provincial/Territorial Ministers Responsible for Seniors in 1998, and is supplemented by the Policy Development Guide released in 2009. It adopted as its vision statement “Canada, a society for all ages, promotes the well-being and contributions of older people in all aspects of life”, and identified five inter-related principles of dignity, independence, participation, fairness and security. 

United Nations International Principles for Older Persons[8] (IPOP): The 1991 IPOP, together with the Madrid International Plan of Action on Ageing (MIPAA)[9], are the most important international documents related to older persons. The IPOP provide a broad and general framework of principles, applicable across a wide range of cultures and circumstances, which can guide states in their policy and program development. 

The Senate Special Committee Report on Aging:[10] The Committee released its Final Report in the spring of 2009. The Committee reviewed public programs and services for seniors, identified the gaps that exist in meeting their needs, and examined the implications for service delivery in the future as the population ages. In developing its Report, the Committee consulted widely and across the country with both older adults and organizations that work with or for them. 

Ontario Human Rights Commission (OHRC) Project on Human Rights and Older Persons: In 1999, in order to mark the International Year of Older Persons, the OHRC launched a project on human rights and older persons. Based on its research and public consultations, the OHRC developed a consultation report and recommendations, A Time for Action,[11] and a Policy on Discrimination Against Older Persons because of Age,[12] which set out an analytical framework for understanding ageism and age-based discrimination against older persons in the human rights context.   

The Advocacy Centre for the Elderly (ACE):[13]  ACE, operating since 1984, was the first legal clinic in Canada with a specific mandate and expertise in legal issues of the older population. It provides both individual and group client advice and representation, as well as conducting public education and law reform activities. In so doing, ACE is guided by the overarching principle that “seniors are people” – they are presumed to be capable of making decisions for themselves and have the right to make foolish decisions if they so choose. ACE has also focused attention on the phenomenon of “good law/bad practice” and widespread non-compliance with or paternalistic application of laws meant to protect the rights of older adults. 

The Canadian Centre for Elder Law (CCEL):[14] CCEL, established in 2003, is an offshoot of the British Columbia Law Institute, British Columbia’s law reform agency. It is a national, non-profit centre focused on exploring the legal issues of particular legal interest to older Canadians, and has conducted research and law reform projects on a variety of issues, including viatical settlements, adult guardianship laws, reverse mortgages, predatory lending and elder mediation. 

Ontario Public Service (OPS) Inclusion Lens: The OPS Inclusion Lens is a comprehensive analytical tool developed by the OPS Diversity Office to assist OPS staff in considering various dimensions of diversity in developing, implementing or reviewing policies, programs or services. Seventeen dimensions of diversity are identified in this tool, including (both younger and older) age, disability, gender and socio-economic status.  

Health Equity Impact Assessment (HEIA) Tool:  This tool was developed by the Ministry of Health and Long-Term Care in collaboration with Ontario’s Local Health Integration Networks as a means of supporting improved health equity and reducing avoidable health disparities between population groups. It provides a step-by-step approach to analyzing how a particular program or policy may affect population groups in different ways.[15]  

As well, many of Canada’s law reform agencies have undertaken important projects on various issues affecting older adults. These include the Law Commission of Canada’s project on Law and the Relations Between Generations; the Nova Scotia Law Reform Commission’s projects on Grandparents’ Rights and on Seniors’ Only Housing; and the Western Conference of Law Reform Agencies’ project on enduring powers of attorneys.[16]

In particular, the work of the Federal/Provincial/Territorial Ministers responsible for Seniors in developing first the NFA and recently the Seniors Policy Lens provides a strong foundation for the development of a consistent, principled approach to the public policy issues surrounding older age, and the OPS Inclusion Lens and the HEIA provide examples of how diversity-related considerations may be translated into practice.  

This project builds on this work to examine in-depth and in a holistic manner the particular issues surrounding the law and older adults, and the implications for the design and implementation of laws and policies of both general and specific application. 

 

3.               A Holistic and Contextual Approach

As the LCO’s Strategic Plan[17] outlines, the LCO undertakes bothrelatively narrow, focused and technical projects as well as large, socially oriented projects that require multi/interdisciplinary approaches and broad consultation and collaboration. This project falls into the second category.

In understanding the experiences of older persons with the law, the LCO has considered not only relevant legal research, but also findings from the disciplines of social science, medicine, gerontology and public policy.  The LCO has sought to understand the social, economic and medical contexts in which older adults encounter and experience the law, and to find approaches which will enable law-makers and policy-makers to take these circumstances into account in designing and implementing laws and policies that may affect older persons.  

This includes consideration of a life course approach to the experiences of older adults, as described in section C of this Chapter. 

 

4.               A Principles-Based Approach  

The LCO is building on the foundation established by the NFA and the IPOP, as well as the work done in developing the Seniors’ Mental Health Policy Lens and the Prevention of Elder Abuse Policy and Program Lens[18] in basing its approach to the law as it affects older adults on a set of principles. Principles can provide a normative framework for the law and identify the goals which laws and policies ought to seek to achieve with respect to older persons. A framework that is based on principles can provide guidance while remaining flexible and applicable in changing circumstances. 

Identification of these principles, while important, is a starting point rather than an end point. The difficult task remaining is to develop a nuanced understanding of what these principles could and should mean in the context of the lives of older adults, and provide a practical guide to their implementation in a legal setting.  

It is also necessary to understand the principles in relationship with each other, and the ways in which, in any particular context, they may or may not support each other. In certain situations, the principles themselves may be in tension and it may therefore be necessary to determine how those tensions might be resolved. This presents a challenge in the implementation of a principles-based approach, but has the benefit of providing a means of articulating and analyzing the complexities inherent in the law as it affects older adults.  

Finally, as part of a principles-based approach, one must recognize that fulfillment of the principles is not a static process, and that laws and policies must continue to evolve as understandings and circumstances develop. Even where one would aspire to implement all the principles to the fullest extent possible, there may be other constraints that might limit the ability of law and policy makers to do so.  These constraints may include policy priorities or funding limitations among others. That is, it may be necessary to take a progressive implementation approach to the full realization of the principles.  A progressive implementation approach involves concrete, deliberate and targeted steps implemented within a relatively short period of time, with a view to ultimately meeting the goal of full implementation of the principles. At the same time, recognition of the principles allows us to identify the distance still to go to advance substantive equality for older adults. 

 

5.               Including the Experiences and Perspectives of Older Adults

While principles provide an essential normative element for a framework, any work on issues related to older adults must nonetheless be grounded in the lived experiences and circumstances of older adults themselves. Principles which do not reflect and respect the circumstances and experiences of older adults will lead to ineffective programs, policies and laws. Therefore, an emphasis on the experiences and perspectives of older adults is central to the Framework itself, including the application of the Framework to development of particular areas of the law.  

The LCO’s Fall 2011 Consultations, and in particular the consultation questionnaires, individual interviews and focus groups, reflected this commitment on the part of the LCO to ensure that the voices of older adults were heard  directly  in the development of the  Framework. The comments of older adults, as well as of the organizations that represent, serve or advocate for them, are included throughout this Report. 

 

6.               Recognizing the “Implementation Gap” – Taking a Broad Approach to “the Law”

There are laws whose provisions are problematic in terms of their effects on older adults, whether because they incorporate ageist attitudes into their substance or because they fail to take into account the realities of existence for older persons. In many cases, however, the law is sound on paper, but problematic in practice. Laws, policies and practices that are in theory neutral or even intended to benefit older persons may fall short of their goal or have unintended negative consequences. There are many reasons for this, including negative attitudes on the part of those charged with implementing the law or policy, failure to provide age-related accommodations for accessing programs or services, adversarial approaches to program implementation, resource limitations, or lack of accountability, monitoring and transparency. 

This points us to the importance of adopting a broad understanding of “the law” when applying the principles. A close analysis of the language of statutes and policies is important, but it is equally important to develop a strong understanding of the effects of the law as implemented. For this reason, the LCO has adopted a broad definition of “the law” for the Framework, as including not only statutes and regulations, but also the policies through which they are applied, and the strategies and practices through which they are implemented.  

Of course, to understand the effects of the law, we must hear directly from those affected by it – both those charged with implementing it, and the persons whose lives are shaped by it. In this way, the necessity of addressing the “implementation gap” points us again to the importance of including and respecting older persons in the process of developing and reforming the law. 

 

7.               Contributing to an Evolving Discussion

Elder law itself is a relatively new field. Although in the United States work on these issues pre-dated attention in Canada and the Older Americans’ Act of 1965 drew attention to issues of nutrition, socialization and housing for older persons, it was not until 1979 that the American Bar Association established its Commission on the Legal Problems of the Elderly, and it was not until the mid-1980s that the National Academy of Elder Law Attorneys was formed.[19] It is now, however, a rapidly expanding field.[20]

In Canada, there are very few elder law courses taught in Canadian law schools and the legal academic literature is relatively sparse. Specialized legal practitioners are rare. Until recently, ACE was the only legal clinic in Canada with a mandate focused on the needs and experiences of older persons. 

However, this is changing. The voices of older adults are increasingly heard in society at large, and more attention is being paid to the experiences of older adults with the law. Concerted advocacy by older persons led to the repeal of laws permitting mandatory retirement in Ontario and British Columbia, and highlighted the importance of laws taking into account the needs, rights and circumstances of older adults. A new specialized clinic for older persons has very recently been opened in British Columbia, and there are projects across Canada aimed at making the law more accessible to older adults. CCEL has brought a concentrated law-reform focus to the needs of older adults.  

This is therefore very much an evolving area of the law. While the Framework reflects current understandings the LCO realizes that this project cannot provide the final word in this area. Thus, the LCO recognizes that the Framework and its application must develop over time, and hopes that users will adapt the Framework to meet their needs as they change.  

 

C.              Theories for Understanding Aging and the Law

Reflecting the relatively recent emergence of the field of elder law and of the concept of ageism, little work has been done until recently to develop a cohesive theoretical approach to elder law.[21] However, there exist a number of approaches developed in other areas that may be valuable in grounding an approach to age and the law. This is not meant as a comprehensive review of all possible theoretical approaches that might apply to older adults and the law, but to identify some useful approaches that are compatible with the starting points identified by the LCO. 

Social Models: The experience of aging is popularly viewed mainly as an inevitable biological process, and the challenges that older persons face, such as social isolation and exclusion, difficulty accessing employment or services, or the necessity of leaving one’s home to access supports, are seen as the unfortunate but unavoidable effects of this biological process. This perspective tends to obscure the effects that the social environment has on the experience of aging and older age. The use of the social model, influential in feminist, anti-racist, disability rights and other movements, can provide a broader perspective from which to understand the experiences of older persons.[22] 

While the experience of older age has some roots in the biological aspects of aging, it is also profoundly shaped by the social environments in which aging takes place – the attitudes which we hold towards aging and older persons, the social supports that are or are not available to older persons and their families, the physical environments in which older persons work, live, and access services, and similar factors. The barriers that older persons face in employment, in living environments, and in participation in their communities arise as much from their environments as from the physical and mental changes that may arise during the aging process. In this light, problems associated with aging are societal problems, and not just individual ones. 

Citizenship: The concept of “citizenship” offers another way of thinking about meaningful participation and inclusion in the broader community.  In this context, citizenship may be defined in various ways, but generally moves towards a vision of full participation and inclusion in the broader community.

Citizenship is a status bestowed on those who are full members of a community. All who possess the status are equal with respect to the rights and duties with which the status is bestowed. There is no universal principle that determines what those rights and duties shall be, but societies in which citizenship is a developing institution create an image of an ideal citizenship against which achievement can be measured and towards which aspirations can be directed.[23]

The Charter, particularly in its equality rights provisions, has profoundly shaped Canadian notions of citizenship, although the diversification of Canadian society complicates these notions.[24] Michael J. Prince, in employing a citizenship discourse to advance policy reform related to disability rights, articulates five dimensions of citizenship: citizenship, legal and equality rights, democratic and political rights, fiscal and social entitlements, and economic integration.[25]

Rights-Based Approaches: Discussions of elder law in Canada have largely focused on older adults as users of health care services and as recipients of care. This has promoted a vision of older adults as passive consumers and care recipients rather than as rights-bearers, and advocacy efforts have focused more often on improvements to service provision than on empowering older adults and securing rights. It has been suggested that current efforts at reform might be strengthened by a greater focus on elder rights as civil or human rights. Such an approach has the potential to change attitudes towards older adults, promote active engagement among this group, and embrace the right to informed choice.[26]

Universalism: Universal (or inclusive) design is the development of environments, products and policies to “be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. The intent of universal design is to simplify life for everyone by making products, communications, and the built environment more usable by as many people as possible at little or no extra cost.”[27] Universal design is intended to benefit people of all ages and abilities. 

The universalism model, mainly explored in the context of the disability rights movement, posits that all people exist along a continuum of abilities and that people’s abilities will vary along this continuum throughout their lives.[28]  This acknowledgement of the near universality of impairment highlights the way in which the line between disability and non-disability is socially and politically constructed.[29] This approach demands a widening of the range of what is considered “normal” in the context of human abilities, with the result being that more flexibility and adaptation is required in social, political and physical structures.[30] To put this principle into action, inclusive design with a concomitant commitment to accessibility, is a key strategy to ensure the maximum inclusion of all people with their infinitely varying abilities.[31] It has been argued that this approach, with its focus on inclusive design and “normalization” of differences, has the potential to spur the systemic reform for the law as it affects older adults, and to promote optimal independence and participation in all areas of society, including employment, housing and health care.[32]

There are, of course, limits to the ability of universalism and inclusive design to remove or prevent barriers. In some cases, individual accommodation will be required in order to ensure equal access to a building, information or a program.[33]  There are also situations where competing needs make it challenging to identify inclusive design solutions. As a simple example, curb cuts, which improve access for persons with mobility disabilities and families pushing strollers, increases difficulties for persons with low vision who require a demarcation of the end of the sidewalk. 

Multi-dimensional analysis: Given the predominance of women among older adults, the LCO recognizes the importance of employing a gender-based analysis of law and aging.[34] The intersection of disability with old age makes it essential to bring an anti-ableist approach to this area of law. As well, recognizing the diversity of older adults, the LCO has also employed anti-racist and anti-heterosexist approaches.  

Life Course Approach:  The health, wellbeing and economic and social security of older adults will inevitably be significantly shaped by their experiences as children, youth and adults. For example, the World Health Organization (WHO) has pointed out that policy on health and aging should be shaped by the recognition that the origins of risk for chronic conditions such as diabetes and heart disease begin in early childhood and are shaped and modified by factors across the life span, such as socio-economic status. Thus, the risks of non-communicable disease should be addressed throughout the life course, in order to enhance opportunities for health and active aging.[35] The NFA recommends that policy developers consistently give consideration to the cumulative impacts on later life of policies and programs targeted at earlier life stages.[36]  

Thus, in understanding the impact of laws, programs and policies, it is important to consider the full life course of older persons. The life experiences of each of us will profoundly shape the resources and perspectives we bring to each stage of life. Barriers or opportunities experienced at one stage of life will have consequences that will reverberate throughout the course of 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 individuals. That is, the impact of laws must be understood in the context of every stage of life, from birth to death, and how these stages relate to each other. 

This Project therefore recognizes that the adoption of a life course approach to aging can enhance understanding of the experiences and circumstances of older adults and support the development of more effective policy approaches, and applies a life course analysis to law and policy related to aging as appropriate. For example, the keynote speaker at the 2010 Canadian Conference on Elder Law, Mr. Justice Murray Sinclair, Chair of the Truth and Reconciliation Commission, which has a mandate to learn the truth about what happened in Canada’s residential schools for Aboriginal children and to inform all Canadians, highlighted how the early experiences of Aboriginal older adults with residential schools and the historic relationship of Aboriginal Canadians with the law continues to shape how Aboriginal older adults relate to law and government. 

A life course analysis assists us in focusing on individuals as the most appropriate unit of analysis for policy decisions; track the effects of policies over time; and to examine the roles of people in relation to a range of different social institutions.[37]

It is important to recognize that the life course will vary based on a range of factors, such as gender, education, racialization, place of birth, sexual orientation and the presence of a disability. For example, women and men on average continue to have different patterns of labour force participation, with women’s labour force participation being significantly shaped by their greater carriage of caregiving responsibilities.[38] This has significant implications for old age, affecting the retirement patterns, income security and social networks of men and women. Public policy must take into account these differing life course patterns. 

The adoption of a life course analysis supports the recognition of the diversity of older persons.  Because of the impact of varying life courses, diversity among individuals tends to increase, rather than decrease, with age. Older adults are not a homogenous group, and understanding their experiences with the law requires a nuanced understanding of the impact that differences in economic status, geographic place of residence, early education opportunities, work experience, age, gender, racialization and multiple other factors play in their experience of law. 

 

D.             Using the Framework

Based on the LCO’s research and consultations, the goal of the project was to develop a Framework that can guide the development and evaluation of laws, policies and practices to ensure that the realities of the circumstances and experiences of older adults are taken into account, and that laws, policies and practices promote positive outcomes for these members of society. 

The Framework 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 Framework is intended to be applicable across all laws and policies, including both those that apply specifically to older adults and those that affect older adults as members of the general population. As it is general in this sense, some may find it useful to adapt it to their own area of law and policy. 

Given the breadth of the issues surrounding older adults and the law, as well as the continual evolution in circumstances and understandings, it is not the purpose of the Framework to point to simple, definitive answers to all of these difficult issues. 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 persons with disabilities with the law. 

The LCO aimed to develop a Framework that is

  • holistic, bringing together the various principles and elements;
  • broad and flexible enough to apply across contexts, so as to be able to address the breadth of experiences of older adults and the many different contexts in which they must interact with the law;
  • reflective of the diversity of experience and identity among older adults;
  • sufficiently practical and specific to provide meaningful guidance for the development of law and policy, and to assist users in concretely understanding the implications of the principles; and
  • useable in its structure, layout and language, to ensure easy usage as a practical tool. 

The Framework takes a step-by-step approach to evaluation, including context, questions and practical examples. 

The Report supports the Framework by providing

  1. a basic account of key elements of the experiences of older adults that may shape the ways in which older adults encounter and experience the law, importantly including considerations regarding the diversity and individuality of older adults;
  2. an understanding of the concepts of ageism and paternalism, and how these may operate in or through law and policies;
  3. detailed descriptions of the sources and meanings of the principles that should shape laws and policies that affect older adults;
  4. a description of the multiple ways in which laws may affect older adults; and
  5. an analysis of the various barriers that older adults may face in accessing the law, together with some proposed strategies for addressing these barriers.

 

E.               Some Comments on Terminology

There is no generally accepted term used to refer to persons who are “older”. Terms in common usage include “seniors”, “elders”, and “older adults”. The terms “Third and Fourth Agers” are also in use, although more rarely.[39]  

The term “seniors” is widely used, and is perhaps the most common term in general parlance. It is frequently used in government, particularly in association with age-specific government programs such as pensions and income-supports. As such, it is often associated with a chronological approach to aging and used to identify those who have passed the legal threshold for qualifying for important programs such as Old Age Security and the Canada Pension Plan. For these reasons, Statistics Canada uses the term specifically to refer to persons age 65 and older.[40]  

The terms “elders” or “the elderly” are somewhat less commonly used, partly because of the potential confusion between the use of the term to refer to older persons as a general group and the use of “elders” to refer to Aboriginal Elders, and partly because the term “elderly” has connotations of frailty and dependence that may reinforce stereotypes. 

The terms “older adults” and “older persons” have become increasingly popular, particularly in the international and the human rights spheres. They emphasize the relative nature of aging and avoid the negative connotations associated with some other terms. 

For the purposes of this project, the term “elder” will be used only to refer to those persons within the Aboriginal community who fulfil the particular cultural and community role associated with Elders. The term “seniors” will be used where a reference to chronological aging is important, that is, where the issue is qualification for a particular program or benefit that includes a specific older age (usually age 65) requirement. For other purposes, the LCO will use the terms “older person” or “older adult”.

Depending on how it is defined, “old age” can embrace a very considerable span of time, covering thirty years or more. Over such a lengthy span of time, the circumstances of any individual are likely to change appreciably, such that the term obscures significant variance in circumstances. Therefore, older adults are frequently broken down into subgroups – the “young old” aged 65 to 74, the “middle old” aged 75 to 84, and the “old old” or “frail old” aged 85 and older – on the basis that there are significant differences in health, participation, income, living arrangements and other key indicators among these three groups.[41] Some have raised concerns that, while the use of these subgroupings aims to reduce stereotypes about older adults, the terms retain the problem of obscuring the great individual diversity in the aging process, and may only succeed in pushing ageist stereotypes and attitudes further back, onto the “frail old” sub-group;[42] therefore, while acknowledging that barriers and experiences may continue to evolve throughout the lifespan, this is not a practice that the LCO has adopted. 

 

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