The great majority of the legislation discussed in this paper is facially “age neutral.” Both subject areas will disproportionately impact older adults. Ensuring substantive equality in these areas means, therefore, recognising how “age neutrality” may play out in real life situations involving older adults in vulnerable situations: where capacity is in question and where others must make decisions on the person’s behalf, and where a person is suffering from abuse or exploitation or where abuse and exploitation is suspected. In these situations, pervasive social and individual-level ageist attitudes will interact with personal vulnerability in a way that makes ostensibly available “age-neutral” rights difficult to assert. Legislation that allows “space” for patronising and ageist approaches (as where incapacity is defined broadly and substitute decision making guidelines are not specific) effectively invites those attitudes in these contexts.

Ontario’s non-legislated approach to elder abuse and exploitation proceeds from an understanding that the primary need in this area is for assistance in exercising existing rights; the key question is whether effective assistance in this context requires additional tools, such as the tools provided by domestic violence legislation. The comprehensive scheme created by the Substitute Decisions Act and the Health Care Consent Act is a Canadian benchmark, in terms of the rights it creates and the guidance it provides. A continuing challenge is ensuring that these provisions are understood and easily exercised by the persons to whom they apply.

Situating the legislation discussed in this paper in the context of national and international statements of principle and the Canadian Charter of Rights and Freedoms clarifies the ultimate objectives of developing an anti-ageist approach in legislation. Respecting both autonomy and human dignity means recognising that older adults in the vulnerable situations described in this paper face the further obstacle of pervasive ageism and disrespect; respecting autonomy and human dignity means accepting that difference does not equal weakness, and that ignoring difference can be systemic discrimination. These issues are brought most sharply into focus with regards to care facility admittance, one area which (although ostensibly age neutral) disproportionately affects older adults and which involves fundamental Charter rights and principles. Ontario and the Yukon aside, the invisibility of this issue in the legislation is itself a manifestation of a deeply rooted social ageism.

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