IV. The Search for Guiding Principles2017-03-03T18:30:47+00:00
One of the many challenges in this area is to find principles that will address an aging population and counter ageism, while being responsive to the diversity of older persons and their circumstances. Guiding principles in this area must be as relevant for (and as able to meet the needs of) the younger healthy person who is moving beyond her or his middle years, as to embrace and reflect the needs and interests of the very old, who may be dependent, who may have diminished cognitive ability, and may or may not be nearing the end of life.

It is essential that any legal framework in this area support the rights of seniors as adults. They are individuals with the same rights as adults of other ages.[107] This area must also be guided by substantive equality by recognizing the importance of context and disadvantage. Guiding principles must be able to look at age in the context of other statuses such as sex and gender identity, race, ethnicity and social class.

To date, principles of independence (autonomy), participation, security, dignity and respect for diversity have emerged in domestic and international legal and policy frameworks for aging.[108] For example, the Law Commission of Ontario has adopted the following principles as the basis for its approach to the law as it affects older adults:[109]

· Independence: This applies in all spheres of life, including rights to meaningful opportunities to work, to age in place, to access education and training, and to make choices and do as much for oneself as possible. Given entrenched paternalism and stereotypes, the presumption of ability is essential to the independence of older persons. This principle also includes measures to enhance capacity for independence, including ensuring access to information, provision of programs and policies that support independence, and the provision of adequate supports for those who provide care for older persons.

· Participation: This includes the opportunity to be actively engaged in and integrated in one’s community, and to have a meaningful role in affairs. Participation is enabled through inclusive design of laws, programs, policies and services. 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.

· Security: Some frameworks refer to this principle as one of “care”. This principle includes the right to physical, financial, and social security, such as the right to be free from abuse or exploitation. It also includes the right to basic supports in terms of health, legal and social services.

· Dignity: This principle involves 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, and a right to privacy. It includes the recognition that all members of the human family are full persons, unique and irreplaceable, that all have inherent and equal worth, and capacity for growth and expression.

· Respect for Diversity: Older adults are not a homogenous group, and their needs and circumstances may be affected by a wide range of factors. The law as it affects older adults will respect the diversity of older adults, and take into account the impact of this diversity on their relationship with the law.

As the Law Commission of Ontario points out these principles must be read in the context of Canada’s human rights framework, including both the Charter of Rights and Freedoms and the Ontario Human Rights Code and with a focus on substantive, rather than formal, equality.

All of these can be very important in promoting an anti-ageist approach in policy. At the same time, it is important to recognize that if principles of independence (autonomy) and participation are overstressed, there is the risk of representing another type of ageism. This ageism is largely focussed on “successful aging” and the functionally independent older person. If independence and participation are considered as the primary principles related to aging, they may leave a proportion of vulnerable dependent older adults that do not meet that definition of “success” further disadvantaged. This includes those who are frail, significantly physically, cognitively or socially impaired, and those at the end of life.

Perhaps for that reason, the Division of Aging and Seniors identified its principles for a “Comprehensive System of Support” as not only including dignity, independence and participation but also safety, security, and social support, along with justice, fairness and solidarity. [110] Older adults, like all adults, live within personal, family and community relationships. Guiding principles for law and aging should recognize the older adult as both an independent and an interdependent person (i.e., where people rely on each other).

Security as a guiding principle should include ensuring good quality physical, mental and emotional care with an emphasis on meeting needs of the whole person; understanding and responding to special needs of people with dementia and other long term conditions. The Division noted “A society is fair and equitable when it ensures that all older persons have equal access to a continuum of quality health, social, financial, and legal services and resources regardless of age, gender, class, race, culture, income, residential setting, and health status, and when it distributes public sector resources throughout all stages of life on the basis of need.” [111]

Guiding principles for aging especially in the areas of health and housing should include a commitment to maximizing potential of older people and the potential of others to better understand the ageing process. Security may also mean enabling through information – ensuring that older people understand range of options available to them and have access to suitable advocacy and support services. Valuing older people may include facilitating their contribution to decision-making processes.

A search for guiding principles in law must be guided by those principles in which the older adults are recognized, visible, valued; where older adults are recognized as contributing to society, and can have their identity reasserted. The principles must be enabling, as opposed to restricting, the lives of older adults.

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