PART II: TAKING THE CIRCUMSTANCES OF OLDER ADULTS INTO ACCOUNT

PART II: TAKING THE CIRCUMSTANCES OF OLDER ADULTS INTO ACCOUNT2017-03-03T18:30:48+00:00

This part of the Framework sets out some key aspects of the circumstances and experiences of older adults that law and policy-makers should take into account in order to ensure that the law, policy or practice does not have unanticipated negative effects on older adults or some groups of older adults. 

This part begins with a brief description of the ways in which older adults may interact with the law. A second section provides a brief overview of some relevant aspects of the circumstances and experiences of older adults, including considerations regarding the impact of particular identities, such as language, ethnicity or sexual orientation on the experiences of older adults, and of the experience of  disadvantage and heightened risk for older adults. A final section outlines some key elements for the effective implementation of laws affecting older adults, including approaches to ensuring access to the law for older adults.

For more information, see the following sections of the Interim Report:

  • The Law and Older Adults, see Chapter V, Section A
  • The Circumstances of Older Adults, see Chapter II
  • Effective Implementation of the Law, see Chapter IV
  • Ensuring Access to the Law, see Chapter V 

While it is generally recognized that older adults make up a significant and growing proportion of Canada’s population, and that they may have needs, circumstances and experiences that differ from younger members of society, laws and policies do not always systematically and appropriately take into account these needs, circumstances and experiences. As a result, laws and policies may have unintended negative effects on older adults, may work at cross-purposes with each other, or may fail to achieve their intended goals. In some cases, stereotypes or negative assumptions about older adults may shape the way in which law is developed, implemented or enforced. In this way, the law may be ageist in its impact on older adults. 

 

A.      The Law and Older Adults – A Brief Overview

It is helpful as a starting point to have a very basic understanding of the legal framework for older adults in Ontario.  

The Charter and Human Rights Laws: All Ontario laws and policies must operate within the framework of the Charter of Rights and Freedoms and the Ontario Human Rights Code, which provide rights to equality and non-discrimination for older adults, as well as other groups or individuals who may be marginalized or disadvantaged. While the principles adopted for this framework have roots in the Charter and the Code and aim to reflect the values underlying these fundamental documents, the analysis under this framework is not intended to replace reviews for Code or Charter compliance. 

Age-Based Laws: There are a significant number of laws and policies that use age-based criteria to specifically target older adults. These include laws regulating access to employment benefits, age-based drivers’ license requirements, special provisions for sport fishing licenses and by-laws providing for seniors’ focused housing. In the case of most uses of age-based criteria, age is serving as a proxy for some other quality, such as low-income, withdrawal from the workforce, health or ability limitations, or lack of legal capacity. 

Laws Mainly Affecting Older Adults: There are also a number of laws that, while they do not employ age-based criteria, mainly affect older adults, operate in ways similar to age-based programs, and are often thought of as such. Laws regulating long-term care homes are one example. 

Laws of General Application: Some laws, while affecting individuals across a range of ages, affect a substantial portion of older adults. For example, a significant proportion of those affected by laws regarding legal capacity and decision-making are older adults. Advocates for older adults have identified this area of the law as one which has a very significant impact on the rights of older persons. Laws of this type require policy-makers to find means to balance the needs and circumstances of older adults against the potentially different needs of other groups affected by the same law. 

In understanding the law as it affects older adults, it is also important to consider laws of general application which do not affect more older adults as a group, but may impact on older adults differently than on other groups. These laws are the most difficult to identify, and require thoughtful consideration to be given to the ways in which the needs, experiences and circumstances of older adults may differ from those of younger adults. 

Where Law is Silent: In some cases, law negatively affects older adults, not by what it does, but by what it fails to do. Law may fail to take into account the needs and experiences of older adults, and may therefore fail to address issues of pressing importance to this group. As a result, older adults may be left without adequate direction to make decisions on important issues, or without adequate supports or protections.

Example: Laws of General Application

Legal Capacity to Marry and to Make a Will

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 Succession Law Reform Act, marriage automatically revokes a previously existing will.  

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.

 

 
 

 

 

 

 

 

 

 

 

 

 

 

General comments regarding the law and older adults: Some very general comments may be made about the interaction of older adults with the law. 

One is that older adults will most frequently interact with the law in the context of ongoing relationships. These may be personal relationships with family or friends, where laws relating to family formation and dissolution, elder abuse, caregiving responsibilities and supports, or powers of attorney and substitute decision-making may be involved. Or, these may be institutional relationships, for example with home care support providers, government departments responsible for income security programs, operators or staff of retirement or long-term care homes, or health care providers. The need to manage and maintain these relationships will influence how older adults will interact with the law.  

The second is that older adults will frequently encounter the law at key transition points. The transition from the workforce to retirement may raise issues regarding employment and pension law, or law related to government programs and benefits. The transition from living in a private setting to a congregate one may lead to interaction with laws relating to long-term care homes or retirement homes. The development of significant health and activity limitations or a disability may lead to encounters with health law, accessibility laws or laws related to legal capacity and substituted decision-making. The points at which older adults may encounter the law are frequently those at which they are most vulnerable.  

Finally, many of the laws that most frequently affect older adults are extremely complex, whether they are laws related to reverse mortgages, powers of attorney and substituted decision-making, long-term care homes, or the various income security programs. Older adults may therefore find it difficult to navigate laws, policies and practices, even those intended to benefit or protect them, without some assistance. 

 

B.      Taking the Circumstances of Older Adults into Account

One of the starting points for an effective approach to laws and policies that may affect older adults is to recognize the existence of older adults as a group that may in some respects have different needs or experiences than younger persons, whether due to biological changes, the accumulated effects of their life courses, social structures, or the marginalization and stereotyping of older persons. With this recognition, as part of respecting older adults as valued citizens, one must take those particular needs and circumstances into account when designing laws, policies and programs.  

1.    Understanding the Circumstances of Older Adults

While aging is often popularly viewed as mainly an inevitable biological process, it is important to remember that the experience of aging is actually a multidimensional process, shaped by social attitudes about aging and older persons, the social structures and institutions (including laws and policies) that surround older adults, and by the lives that older adults have lived up prior to entering “old age”. Any description of aging and older adults is therefore necessarily complex.  For more detailed discussion, readers may wish to refer to Chapter II of the Interim Report.  

Diversity among older adults: As older adults make up a very significant portion of the population, one should expect to find all of the diversity of the population at large reflected among older adults. In addition, the effects of differences at younger ages may be amplified by the life course, so that older adults may in fact be more diverse in many ways than younger age groups. There are therefore limitations to the extent to which one can generalize about older adults, and caution should be used in order to avoid stereotyping. 

This is particularly true because “older age”, however one defines it, spans several decades. Just as the life course will likely result in some differences (as well as some commonalities) between a 25 year old and a 55 year old, so it will result in differences as well as commonalities between a 55 year old and an 85 year old. 

Aging is, of course, just one aspect of the identity of an older person, and often is not experienced as the most important aspect of a person’s identity. Each person’s experience of aging will be affected by a variety of factors, including their:

  • gender,
  • ethnicity or racialization,
  • Aboriginal identity,
  • newcomer or citizenship status,
  • language,
  • sexual orientation or gender identity,
  • disability,
  • socio-economic status,
  • marital or family status,
  • geographic location (e.g., residence in rural or remote communities) and
  • other factors. 

Individuals who have experienced marginalization or discrimination throughout their lives due to one or more of these factors may find that aging compounds it or changes how they experience it.  

Social attitudes towards aging and assumptions about older adults:  While it is not inevitably so, it is frequently the case in Canada that aging, and by extension older persons, are viewed with fear and avoidance. The experience of aging may be shaped by stereotypes of older persons as frail, incapable, passive and burdensome, resistant to change, inevitably declining and having nothing further to contribute. These negative perceptions of older persons may result in discrimination or poor treatment of older adults in employment, housing or receipt of services, and can lead to exclusion, disadvantage or even abuse of older adults. 

Many common assumptions about older adults are simply stereotypes. For example, contrary to the assumption that most older adults are living in congregate settings such as retirement or long-term care homes, over 90 per cent of adults over age 65 live in private households. Although older adults are stereotyped as inevitably frail and in ill-health, a significant proportion of adults over age 65 consider themselves to be in good or excellent health. The assumption that older adults are passive and dependent is belied by the extensive involvement of older adults as volunteers in their communities, as caregivers for their spouses, grandchildren and other loved ones, and in their civic engagement.

Aging and the life course: The lives and circumstances of older adults are profoundly shaped, not only by current laws and policies, but by those in effect when they were children, young adults, and in middle-age. For example, the literacy levels of those who are now older are the results of public policy decisions and socio-economic conditions that were in place decades ago. The challenges that now exist in ensuring that those who are now in their 80s have access to the information they need about their rights and responsibilities have their sources in long-past decisions by governments, families and individuals. 

This has two implications for any evaluations of law and policy with respect to older adults. First, any laws and policies developed to address the circumstances of those who are currently older must be rooted in a solid understanding of how the life-courses of older adults have shaped their experiences and current needs. Secondly, to understand how laws, policies and practices may affect older adults, it is important to consider how current laws and policies are shaping the lives of those who will someday be older adults. How might our laws and policies shape the older age of those who are now children, youth, or middle-aged?

Social structures and institutions: The network of social structures and institutions will play a major role in how aging is experienced, whether it is the physical accessibility of services and buildings, the existence, or lack thereof, of various types of informal or formal supports, or the web of laws regulating a range of areas of life, from congregate living, to caregiving, to elder abuse.  

Consideration of the above factors reinforces that it is essential to rely on current research regarding older adults, as well as to consult with older adults themselves, in order to avoid relying on stereotypes and incorrect assumptions or outdated information. The needs and circumstances of older adults are significantly shaped by their life courses and their current environments, both of which are constantly changing. It is therefore important that the information relied on is current and up-to-date, that attention is paid to future trends, and that laws and policies are regularly re-evaluated to ensure that they are based on accurate information. 

 

2.    Factors to Take into Account When Considering the Impact of Laws or Policies on Older Adults

This section provides a brief outline of some key aspects of the lives of older adults, as a foundation for understanding when and how older adults’ needs and circumstances, and thereby their relationships with the law, may differ from those of younger persons. Given the confines of space and the diversity among older adults, this is not intended to provide an exhaustive description; rather, it is intended to point towards some key considerations that are particularly relevant to the relationship of older adults with the law. As well, given that “older age” spans many decades, some of these factors will be more relevant or will operate more significantly at some stages than at others.  

Life expectancy: To note that older adults are likely to have less time remaining to them than younger adults is to state the obvious; nonetheless, the potential shortness of the time remaining to older adults may affect how they view and are affected by the options available to them. For example, if older adults must undergo long-drawn out processes to obtain benefits or enforce their rights, they may decide not to assert these rights and benefits as they are less likely to be seen as providing a meaningful resolution to the issue at hand.

Literacy and education levels: While levels of literacy and education among older adults will rise over time as a result of recent trends in education, at the current time older adults tend to have lower levels of literacy and education than younger Canadians have. As well, on the whole, older adults may have less familiarity with new technology, including information technology. This has a significant impact on how they access information and therefore on their ability to understand and enforce their rights.  

Labour force participation: Older workers are more likely than others to be temporarily employed, self-employed, or engaged in part-time work. As well, older adults widely report discrimination and other barriers in the labour market. The incidence of long-term unemployment tends to increase with age. Older women in particular are more likely to have had lower wages and an interrupted work experience. 

While this may change in the future, it is currently the case that most older adults have withdrawn from employment by the age of 65 and are reliant on fixed incomes from pensions or government programs for their livelihood, whether as a result of choice or labour market barriers. As a result, most older adults have limited capacity to deal with significant unanticipated expenditures, which could tip them into spending the rest of their lifetimes in poverty or financial difficulties.  This means, for example, that for many older adults, spending considerable sums in order to undertake litigation is not a feasible response to difficulties in accessing their legal rights. 

Income security: Government-administered income sources, such as the Canada Pension Plan, Old Age Security, the Guaranteed Income Supplement and Ontario’s GAINS program are an important source of income for most of those aged 65 and older. 

While low-income is not currently widespread among older adults, some groups of older adults, such as unattached older women, disproportionately live in low-income. As well, current trends in terms of pensions and retirement savings, including declining rates of pension plan membership and the potential volatility of returns on investments, indicate that low-income may once again become more common among older adults. This means, for example, that costs associated with accessing legal rights and remedies could operate as a barrier to some significant groups of older adults. 

Living environments: The great majority of older adults live in private dwellings and express a strong preference for aging in their own homes and their own communities. However, lack of accessible and affordable housing, the challenges of living on a fixed income and difficulties accessing personal, community or homecare supports in a private home setting may push older adults into congregate settings. 

A significant number of older Ontarians live in “retirement residences”, which operate under a variety of models and provide a broad range of services. Some offer only minimal assistive services, while others essentially operate as private long-term care homes. While only a small percentage of Ontario’s older adults live in long-term care homes, the likelihood of living in such an institution increases with age, and women are significantly more likely than men to do so. Long-term care homes provide essential supports to the most high-need older adults and can provide real benefits to their residents. Poorly run long-term care homes, however, place their residents in significant jeopardy, particularly because of the very unequal power dynamic between residents and the staff and operators of these homes. 

Persons aged 65 and older are disproportionately likely to live in rural or remote areas, and may face particular access issues as a result. Transportation may become a major issue for older adults who are unable to drive and do not have access to public transportation due to their place of residence. The lack of legal and government services in these areas exacerbates these issues.  

Family, relationships and caring: In general, the most common living arrangement for older adults is to live with a spouse, although the frequency varies and declines with age. As individuals age, the likelihood that they will be living alone increases, as does the risk of social isolation as friends and family members also age and die. Due to longer life expectancies for women and the tendency for women to be the younger partners in heterosexual relationships, women are particularly likely to live alone in older age.

Older adults both give and receive care of various types from family members and friends. Older adults are significant providers of care to spouses, family members with disabilities, and grandchildren (both as secondary and primary caregivers). For older adults with health or activity limitations, informal care from family or friends may be essential to their wellbeing, particularly where formal supports are limited or are difficult to access.

Key Issue

Older Age and Disability

There are, of course, significant intersections between disability and older age:

  • Those who are born with a mental or physical disability or acquire one in their youth will age with that disability, and their older age will be shaped by their experiences of disability throughout their lives.
  • As age increases, there is increased risk of some types of impairments and disabilities, such as sensory disabilities, mobility disabilities or dementia.
  • Older adults may be affected, not by disability itself, but by assumption that age and disability are inevitably linked and that they must either be currently disabled or will inevitably become so, and thereby will require accommodations or assistance. Depression, for example, is often assumed to be a natural component of aging, and may therefore be left untreated in older age. 

However, it is important to keep in mind that there are also differences.

  • Most older adults do not have significant activity limitations, particularly not “younger” older adults.
  • There will be significant differences between those older adults who have aged with a disability and those who have developed a disability with age. Those who have lived with a disability throughout their lives, and have therefore experienced barriers to education, employment and social inclusion will likely reach older age with fewer social and economic assets than those who develop a disability later in life.

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

Health and activity limitations and disability: With advancing age, older adults are more likely to develop impairments, health conditions or disabilities that affect their access to information, processes or buildings. For some older adults, waiting in long line-ups, reading small print, accessing buildings via a flight of stairs or understanding directions in a setting with high levels of ambient noise, becomes more difficult. Barrier-free design of websites, buildings, services and programs becomes increasingly important.  

Older adults also face disproportionate transportation-related barriers: with age, older adults become less likely to drive, and public transportation services may be non-existent (in rural and remote communities) or physically inaccessible. Older adults may, for example, have difficulty in travelling to access justice-related services.  

As well, ill-health may undermine the stamina required to undertake lengthy or onerous legal procedures. 

While most older adults have no significant cognitive deficits, some adults may age with intellectual or developmental disabilities. There is also a risk of developing cognitive disabilities, such as dementia, with age.  Such disabilities may affect memory or decision-making skills, which may have a significant impact on the ability of these older adults to understand and to access rights and benefits as well as on their relationships, community inclusion and living environments.

Key Issue

Gender and Aging

It is particularly important to consider the experience of aging and older age through a gender lens. With current demographic patterns, most older adults are women, and the older the age reached, the more true this is. The experiences of older women differ from those of older men in many ways. For example, because of longer-life expectancies and because women tend to marry older men, women are more likely than men to be widowed and living alone, which has a number of implications for income, caregiving and living arrangements. Because of historic gender roles, women who are currently older are likely to have lower levels of educational attainment than their male contemporaries, and lower incomes due to lesser workforce attachment. Older women also face particular negative stereotypes and dismissive treatment related to their age and gender. A gender-based analysis is therefore an important piece of any analysis of laws and policies that may affect older adults.

 

3.    Intersecting Identities

In considering the circumstances of older adults, it is important to take into account the particular experiences of those older adults who are also identify as racialized, Aboriginal, LGBT, disabled, newcomer or other identities that may lead to marginalization or disadvantage. 

Those who have experienced discrimination throughout their lives due to their gender, sexual orientation, racialization, Aboriginal status or other factors are more likely to enter old age with fewer social or economic resources, and therefore may find navigating the experiences of old age more challenging. For example, discrimination in youth may lead to lower levels of education and literacy. This may result in lower earnings throughout life. As a result, these individuals may enter old age more reliant on government income supports, and with more challenges in finding and using information about their rights. More subtly, those individuals from marginalized groups who survived stigma and discrimination through a strategy of silence and invisibility may be particularly hard to reach through regular services and programs and their needs may be invisible to the larger community. 

There may be specific stereotypes or attitudes related to particular groups of older adults. For example, aging in women is seen as particularly unattractive, and older woman are especially likely to be treated in patronizing or dismissive ways. Older immigrants for whom English is a second language are likely to be treated with very low levels of patience, reflecting the impatience with which both older adults and new immigrants are generally treated.  

Some relatively common aspects of the experience of aging may have particular effects on some communities of older persons because of circumstances specific to those communities. For example, aging in place is important to the well-being of all older adults. However, it may be particularly important – and particularly difficult to achieve – for some older adults. For example, First Nations older adults who have lived for almost all of their lives in their home communities will experience additional difficulties in being removed from their language, culture and community. For First Nations older adults who lived through the residential schools experience during their youth, re-institutionalization in their old age may hold a special trauma.

Example: Addressing Compounded Disadvantage

LGBT Positive Long-Term Care Homes 

Recognizing that older LGBT (Lesbian, Gay, Bisexual, Transgendered) adults may face specific barriers when entering long-term care, including homophobic attitudes from residents and staff that may result in social isolation or “re-closeting”, the City of Toronto developed long-term care residences that provided a gay positive environment. Activities include positive programming, and staff that are known for their inclusive and positive attitudes.

4.    Disadvantage and Heightened Risk

Older adults have often been considered “vulnerable” as a group, and this vulnerability has been used to justify significant levels of interference with their autonomy. It is inaccurate to assume that all older adults are frail, dependent and therefore in need of protection (whether or not they have requested it). It is also problematic to assume that the only or most appropriate response to vulnerability is to restrict the autonomy of the older adults in question, a common form of paternalism affecting older adults.

However, it is also problematic to assume that all older adults are privileged, affluent and capable. Aging may expose older adults to greater likelihood of certain types of risk and disadvantage, such as those associated with shortened life expectancies, social isolation and disability. Some older adults enter this stage of life with fewer resources (financial or otherwise) than others, such as those who live in low-income, or are racialized, LGBT or otherwise marginalized, and so are disadvantaged when compared to other older adults and to most younger adults. For those older adults who experience or who are at greater risk of disadvantage and negative outcomes than others, a higher level of attention or protection from law or policy-makers may be essential. 

While there are individual elements to risk, risk must also be understood in a broader social context. An older adult’s family and other relationships, living arrangements, income sources and levels and access to supports may either increase or decrease levels of risk and inequality, depending on their quality and extent. The law may increase or decrease the levels of risk and inequality for older adults. For example, the legal regimes for continuing powers of attorney, or for safeguarding the security of those who live in congregate environments can either ensure that the rights of older adults are safeguarded, or leave them vulnerable to abuse or mistreatment. Laws of general application that do not take into account the needs of older adults may make it more difficult for older adults to uphold their rights. Discrimination and negative social attitudes towards older adults may reduce their access to employment, housing or services and thereby increase their levels of risk.

Therefore, while laws, programs and policies must recognize the capacities and individuality of older adults, this recognition must be balanced by the provision of additional supports for those older adults who are particularly disadvantaged or at risk in order to ensure that the law promotes dignity, autonomy, participation and security for all older adults.

Example: Addressing Older Adults at Risk

 Seniors’ Focused Services in Policing

Several police forces in Ontario and across Canada have developed specialized services or departments to address particular risks or disadvantages for older adults. For example, the Seniors’ Issues Office on the Elliot Lake Police Force blends social work and policing service with the goal of supporting and promoting the independence and security of seniors in Elliot Lake.  The office was started to supply assistance for seniors who may be alone or isolated and do not venture out of their residences for a month or more. It consists of two major components:

  • Seniors’ community development project which focuses on promoting the positive aspects of social support: familiarity, interdependency, a sense of belonging, and a sense of connectedness to the community; and
  • Senior’s prevention/intervention project, aimed at seniors considered to be ‘at risk’ of victimization.

Partnerships have been developed with Elliot Lake Retirement Living by providing referrals and working cooperatively with the customer service co-ordinator and all staff.  By this means, the Seniors Issues Office has access to all rental buildings and assistance of building superintendent to reach any seniors who may be at risk.

  
C.  Ensuring Effective Implementation 

Even where laws are based on a thorough and nuanced understanding of the circumstances of older adults and aim to promote positive principles, their implementation may fall far short of their goals. This phenomenon, sometimes referred to as the problem of “good law, bad practice”, is not uncommon in the law as it affects older adults.  The Report of the United Nations Expert Group Meeting on the Rights of Older Persons specifically urges governments to “close the gap between law and implementation of the law”. There are two aspects to this issue: implementation strategies for the law, and mechanisms for ensuring that older adults are adequately able to access and enforce their rights. 

1.                Implementation of the Law 

Based on the LCO’s research and consultation, a number of key issues have been identified that commonly lead to problematic implementation of otherwise laudable laws, policies and programs affecting older adults. The following elements of implementation can ensure more effective implementation of laws and policies that may affect older adults:

  1. Anti-ageist training for those interpreting or implementing laws and policies: Those working in the field of elder law have repeatedly emphasized the importance of developing and implementing strategies for combating ageism and paternalism among those charged with implementing laws and policies that affect older adults. Unless ageist and paternalistic attitudes are addressed, they will inevitably taint the application of the law, no matter how well it is designed.  
  2. Training on the relevant needs and circumstances of older adults: It is essential that those who are providing programs and services to older adults understand the actual circumstances of older adults who are seeking to access rights and benefits. 
  3. Adequate training on the law and its implications for those implementing it: Given the complexity of many areas of elder law, it is perhaps not surprising that those charged with implementing these laws not infrequently have less than adequate information or understanding about the applicable laws. Service providers, government officials and even lawyers may act on misunderstandings of the law or may provide older adults with incorrect information. It is essential that those who are implementing the law receive adequate and appropriate training and resources to ensure the law is implemented as intended. 
  4. Adequate resources for effective implementation of the law: In some cases, adequate human or financial resources are not provided to ensure the appropriate functioning of a law or program, so that access to rights and benefits is, in effect, rationed. For example, an audit-based compliance system will only be effective if sufficient staff are available to regularly conduct audits. 
  5. Monitoring mechanisms to ensure the law is operating as intended: Implementation and enforcement mechanisms for laws and programs affecting older adults, particularly vulnerable older adults, would benefit from the consistent use of measures to ensure accountability, transparency and effectiveness. Where there is a lack of such monitoring and oversight mechanisms, it is impossible to know the extent to which older adults have meaningful access to rights and benefits or are subject to abuses or violations of their rights. This results in considerable difficulty in ensuring effective operation of these laws or policies. Mechanisms for monitoring the implementation and impact of a law or policy should be built into the law or policy from the outset. 

Example: Monitoring Mechanisms

Proposals to Reform Enduring Powers of Attorney

Concerns have often been raised regarding the lack of mechanisms to monitor the operation of enduring powers of attorney, given the very broad powers that attorneys may have under the law, the significant effect on older adults of abuses and the lack of meaningful safeguards against abuse.  

The Alberta Law Reform Institute, in its recent review of laws related to enduring powers of attorney, has recommended that transparency and accountability for the exercise of powers of attorney be strengthened by include provisions requiring attorneys, upon commencing responsibilities for a legally incapable person, to issue a formal notice in which he or she formally acknowledges and accepts a specified list of duties as an attorney, and provisions enabling persons concerned about misuse to report concerns to a designated public official who will have discretion to investigate.

 

2.    Access to the Law for Older Adults

For a variety of reasons, older adults may have difficulty in accessing and enforcing the rights and benefits set out in law. Measures to ensure access to the law for older adults include:

  1. Ensuring that access and enforcement mechanisms take the needs and circumstances of older adults into account: The mechanisms available to older adults for accessing and enforcing their rights may not adequately take into account their needs and circumstances. For example, complaint mechanisms that rely on older adults accessing information over the internet and downloading and completing extensive forms may form a barrier to older adults with lower levels of literacy or of comfort with newer technologies. In some cases involving laws of general application, it may be appropriate to develop access mechanisms that specifically target older adults in order to ensure that meaningful access is available to this group.
  2. Empowering older adults: Older adults may not be aware of their rights, or of how to access and enforce them, or may need assistance in navigating complex systems. Because so many areas of law affecting older adults are so complex – for example, laws regarding capacity and consent and laws regulating long-term care – older adults may have difficulty meaningfully accessing their rights without assistance.  Examples of mechanisms that may empower older adults include institutions like the Advocacy Centre for the Elderly, or laws that require the provision of “rights advice” to psychiatric patients whose legal status changes in specific circumstances. 
  3. Addressing systemic issues: Enforcement mechanisms that rely heavily on older adults themselves initiating complaints about problems and pursuing remedies are not likely to be effective in ensuring that complex systems operate as intended and that the rights of older adults who are disadvantaged or at heightened risk are respected. Where complex systems are in play and disadvantaged or at-risk older adults are involved, it is important to include pro-active oversight and enforcement mechanisms. Further, where appropriate remedies must include the opportunity for systemic change. For example, where the Human Rights Tribunal of Ontario makes a finding of discrimination, it has the power to order the organization to develop new policies or practices, or revise existing ones, so that the issue does not recur. 
  4. Alternatives to adversarial systems: As noted above, many laws that significantly affect the lives of older adults involve in some way ongoing relationships that are of importance to older adults. Because the relationships involved may be of great emotional or practical importance to older adults, they may be highly reluctant to engage in adversarial dispute resolution mechanisms that may lead to the breakdown of the relationship at issue. Alternatives may include mediation programs, or the use of non-complaint-based mechanisms like pro-active audits or advocacy systems. 

Effective mechanisms for providing access to the law for older adults must take these realities into account.

 

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