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 reflec