This document has been developed to accompany the Law Commission of Ontario’s (LCO) Call for Papers in relation to its Project on the Law as it Affects Older Adults. It provides further information on the Project and on the key research themes identified by the LCO.
The aging of the Canadian population, together with the advances made by organizations advocating for seniors’ rights, have in recent years increasingly brought issues related to older adults to the forefront. However, there has generally been relatively little attention paid to their relationship to the law. While pioneering work has been done by, for example, the Advocacy Centre for the Elderly and a number of individual elder law practitioners, specialized attention to the legal needs of older adults has been sparse. There has been little research on the barriers that older adults in Canada face in accessing the law and the justice system, and on how access might best be facilitated.
Consideration of the law as it affects older persons has often been restricted to issues which, on their face, clearly have a disproportionate impact on older persons, such as estates, health care and end of life issues. Less often considered are laws which, while they have broad application, may have a different impact on older adults than they do on others, and which might be fairer or more effective if they took issues related to aging into account.
As well, elder law is sometimes treated as a collection of disparate issues, and it has been felt that this area of the law would benefit from a more holistic and principled approach.
The Law Commission of Ontario has initiated a project to develop a systematic framework for the law as it affects older adults. The focus of this Project is not on reform of any one specific issue related to older adults, although specific issues will be examined as examples. Rather, this Project aims to develop a coherent approach to this area of the law, which can be used as a template, or set of principles, in developing law reform proposals related to older adults, and in ensuring that new laws take into account the needs and circumstances of this group.
Given the breadth of scope of this Project, it will be a multi-stage, multi-year endeavour. As this is a very broad area, with a plethora of potential topics, approaches and themes, the Project began with a Pre-Study. The object of the Pre-Study was to develop a principled approach and analytical framework for the project, and to identify the key issues and sub-projects within the larger project.
In May of 2008, the LCO launched the Pre-Study with a Consultation Paper on Shaping the Project. This Paper was posted on the LCO website and distributed to a wide range of academics and researchers, legal clinics, community organizations, and government bodies. The 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.
The LCO has prepared a Consultation Report which sets out the results of the consultation and identifies next steps for the Project, including key themes, issues and principles, and the LCO’s research priorities. The Consultation Report will be released shortly.
Based on the results of this Pre-Study, the LCO is now commencing the second stage of this Project, with this Call for Research Proposals. The LCO intends to fund relevant research that explores the themes, principles and issues developed through the Consultation, with a view to identifying best practices and principles related to the law as it affects older adults.
1. Developing an Anti-Ageist Approach to the Law
Although ageism has received relatively little public attention, it has a significant impact on the lives of older adults, both in terms of negative attitudes that older persons may face on an individual basis, and as a result of the influence that ageism may have on policies, programs and laws. Laws, like government policies and programs, may be subtly influenced by ageism, and may reflect unwarranted stereotypes, attitudes and assumptions about older adults. As well, a neutral law may be administered in an ageist or paternalistic fashion. One aspect of ageism is the failure to take older adults into account, and to fail to see their capacities, their needs, their contributions, or their very existence. Older persons may, in this sense, become “invisible”.
Through domestic and international legal and policy frameworks, a number of principles have been advanced as promoting an anti-ageist approach:
• Independence (autonomy), including a presumption of ability and measures to enhance capacity for independence;
• Participation, including a recognition of the importance of inclusive design and of the right to be consulted;
• Security, including the right to financial, physical and social security, the right to be free from abuse and exploitation, and the right to basic supports in terms of health, legal and social services;
• Dignity, including respect for one’s fundamental value as a person, and the right to be treated equally and without discrimination; and
• Respect for diversity, including differences related to age, income, education, sexual orientation, gender, area of geographic residence, family and marital status, immigration and citizenship status, racialization and ethnic origin, and mental, physical, intellectual or sensory disabilities.
The LCO recognizes that these principles are interdependent, and also that it may be necessary to balance these principles against each other in some situations. For example, the tension between the principles of independence and security is a recurring theme in law and policy relating to older adults.
This theme raises the following questions:
• Are there ageist, paternalistic or stereotypical assumptions about older adults underlying the law?
• Is the law implemented in an ageist or paternalistic fashion?
• Does the law adequately take the needs and circumstances of older adults into account, or does it render them invisible?
Consultees identified concerns regarding ageism with respect to the following areas of the law; papers may focus on these or other relevant topics:
• Responses to elder abuse and exploitation;
• Decision-making frameworks (i.e., capacity, guardianship and power of attorney frameworks);
• Employment discrimination;
• Seniors’ housing; and
• Predatory financial practices.
2. Use as Age as a Legal Criterion
Attainment of a particular age, often (but not always) age 65, is frequently a criterion for access to a wide range of programs, whether in the public or private sectors. Age is also frequently used to restrict access to programs or opportunities. This raises a foundational question for the law as it affects older adults: why should older adults be treated differently from other members of the community? If universal laws and requirements are insufficient for addressing the situation of older adults, why is that the case and in what circumstances? That is, under what circumstances does age “make a difference” and under what circumstances should it?
The LCO is interested in papers that consider the use of specific age-based criteria, whether these criteria are appropriate and effective, and alternatives to age-based criteria. The following age-based programs and policies were the subject of comment or concern during the LCO’s preliminary consultations; however, papers on other age-based criteria are also welcome:
• Access to income support or income replacement programs such as social assistance, workers’ compensation benefits and Ontario’s Guaranteed Annual Income System;
• Age-based driving requirements or restrictions; and
• Access to employment-related benefits such as pensions, insurance or health benefits.
3. Age and Access to the Law
Older adults may face a range of barriers to accessing and enforcing their legal rights, including physical, financial, and attitudinal barriers. Both older adults and those who provide services to them may be unaware of their legal rights and the remedies available. The remedies available may themselves be insufficient to provide effective redress for the violation of legal rights. Older adults living in institutional settings may face unique challenges.
There are questions and concerns regarding, not only how older adults access the legal system, but whether the system itself could be designed in a manner that would provide older adults with more effective access to their legal rights. Some have urged greater use of administrative law systems, alternative dispute resolution, proactive compliance mechanisms (such as audits), and the creation of special advocates, such as ombudsmen.
The LCO is interested in papers that explore the following questions:
• To what degree do older adults currently have access to the law? Among older adults, who accesses the law and how?
• What barriers prevent older adults from effectively accessing the law?
• Are there systems or programs currently operating that model effective approaches to access to the law for older adults?
The LCO encourages researchers to consider cross-jurisdictional research, and the needs and experiences of diverse groups of older adults.
4. Aging and Relationships
Older adults, like younger ones, in most cases live as part of a web of interdependent relationships. As with all of us, these relationships are frequently complex, sometimes difficult or even abusive, and very often central to the older person’s identity and wellbeing. In some of these relationships, the older person is primarily a caregiver, in other cases primarily a recipient of care, and in most cases both provides and receive care and support.
The relationships of importance to older adults are not always recognized or supported by the law and policy. Sometimes this is because of ageist assumptions – for example, relationships where older adults provide care, rather than receiving it, are often overlooked. Sometimes this is because of heterosexism or cultural assumptions, for example about the centrality of the nuclear family.
As well, many have pointed to the inadequate supports provided in law and policy for those who care for friends or family members. Failure to provide appropriate supports for carers can have a negative impact on older adults, both in their role as care recipients and as caregivers, as well as on the quality of their relationships.
Finally, the law may be a very blunt instrument for addressing complex family dynamics, and may be inadequate in dealing with profound family conflicts. Concerns have been raised, for example, regarding the effectiveness of the Substitute Decisions Act and the Health Care Consents Act in providing appropriate and effective resolutions in these types of situations.
The LCO invites papers that analyze the effectiveness of current laws in addressing the relationships of older adults, and consider principles or approaches that might underlie effective legal recognition and support for the relationships of older adults.
5. Institutional Living
Although only a minority of older adults lives in institutional settings, because these environments raise unique and complex issues, they must be given careful consideration in the development of any framework. How can autonomy and participation in the larger community be facilitated in such settings? How can one reconcile the rights of residents in what is, after all, their home, with the rights of the workers who provide their care? How can one design effective mechanisms for enforcing the rights of residents where those residents are dependent for their care on the very persons or institutions that may have violated their rights?
Many concerns have been raised with respect to the law respecting Ontario’s “retirement homes” and long-term care facilities, including:
• Provision of appropriate supports and safeguards to ensure that older adults can age in place in the community, rather than in an institutional setting, including supports and requirements for accessibility;
• The lack of a comprehensive regulatory framework for Ontario’s rapidly expanding “retirement home” sector;
• Inadequate enforcement of existing protections and safeguards in this area;
• First available bed policies and admission contracts;
• Detention and use of restraints;
• Vulnerability to abuse and inadequate care; and
• Lack of privacy, dignity, autonomy and respect for relationships.
The LCO invites papers on these or other relevant topics that explore how the principles of independence, participation, security, dignity and respect for diversity can be effectively furthered in these settings.