I. INTRODUCTION2017-03-03T18:30:48+00:00

A.    Background

1.                  The LCO’s Project on the Law as it Affects Older Adults

This project is based in part on a proposal received by the LCO soon after its inception from Professor David Freedman, a professor of Elder Law at Queen’s University Law School. 

Demographic changes have in recent years drawn increased attention to the needs and circumstances of older adults. With the aging of Canada’s population, the importance of developing sound legal and public policy approaches to issues affecting older Canadians will continue to grow.  

Despite pioneering work done by organizations such as the Advocacy Centre for the Elderly (ACE) and the Canadian Centre for Elder Law (CCEL), relatively little attention has as yet been paid to the overall relationship of older Canadians with the law. While substantial and important work has been done on specific elder law issues, such as consent and capacity laws, mandatory retirement and elder abuse, there is generally a dearth of Canadian research on how older adults access the law and the barriers they face in doing so, and on how the law as whole might be made more effective, fair and accessible for older adults.  As well, research and policy development related to older adults and the law has focused on laws that explicitly or obviously disproportionately affect older adults, such as age-based drivers’ license requirements or legal issues regarding long-term care, while less attention has been paid to how laws affecting the general populace may also have a differential impact on older persons. This is therefore an area of the law that would benefit from a more holistic and principled approach. 

As the Federal/Provincial/Territorial Committee for Seniors pointed out in their Seniors’ Policy Handbook:

Applying a seniors’ policy lens can help to ensure that:

  • the needs and values of seniors are respected
  • the contributions of seniors in all aspects of life are acknowledged
  • the diversity of the seniors’ population is taken into consideration
  • activities that affect seniors are approached in a holistic manner that considers linkages and interactions with other policies and programs
  • the cumulative impact of change and the implications for seniors have been thoroughly considered
  • the concerns and issues of today’s seniors and of coming generations of seniors are considered.[1] 

Based on the proposal and the LCO’s internal research, the Board of Governors approved a multi-year project to develop a coherent framework for the law as it affects older persons. The aim of the LCO’s project on the law as it affects older adults is not to recommend specific reforms to particular laws affecting older persons, although certainly law reform is needed in many areas. Rather, the purpose of the project is to articulate a set of principles and considerations that may form the basis of a coherent analytical framework for this large, diverse and complex area of the law. Given the barriers that older adults face in accessing justice, the principles and considerations adopted should not only systematize this area of the law, but also make it fairer, more accessible and more effective. The ultimate aim of this project is to build on work that has already been done to develop a sound basis for evaluating current laws and policies and developing new ones, to ensure that they respect the rights and circumstances of older persons.   

This project is closely related to the LCO’s similar project on the law as it affects persons with disabilities.[2] A significant minority of older persons live with disabilities, whether because they have aged with disabilities or because they have developed disabilities as they aged. As well, there is a rich literature in the area of critical disability studies and the law, some facets of which can inform the development of an anti-ageist approach to the law, as can equality theory more generally. Therefore, while there are many areas where the two projects diverge, they have been developed in tandem and have shed light on each other during that process.

 

2.                  Shaping the Project: The Process 

Given the breadth and complexity of the issues raised by this project, it was planned as a multi-year, multi-stage project.  

Older adults are an extremely diverse group, ranging widely in histories, identities and circumstances. Every law that affects the general populace will affect older adults, sometimes in ways that are similar to how it affects others but often differently, and, importantly, often in very different ways for various groups of older adults. The area of “elder law” itself – that area of law dealing specifically or disproportionately with older adults – is extremely complex. As just one example, the law relating to capacity and substitute decision-making has itself been the subject of numerous law reform endeavours and voluminous reports.   

Recognizing the challenges inherent in this project, the LCO therefore commenced its work with a “Pre-Study” process, aimed at identifying themes, issues and approaches for the overall project.  In May of 2008, the LCO launched the Pre-Study with a Consultation Paper on Shaping the Project.[3] 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 and individuals. 

The LCO reported on the results of this Pre-Study and its initial research in a Paper issued in December 2008.[4]  In this Paper, the LCO adopted five preliminary principles: independence and autonomy; dignity and respect; participation and inclusion; security; and respect for diversity. It also identified several thematic areas for focus, including ageism and the law, the relationships of older adults and the living environments of older adults. This input shaped the considerable research undertaken by the LCO for this project. 

In January 2009, the LCO issued a Call for Research Papers on these themes, in order to supplement its own research and to gather diverse perspectives on key issues. Through this Call for Papers, the LCO funded three research papers: one from ACE on access to the law and congregate living; a second by Margaret Hall on developing of an anti-ageist approach to the law in the context of elder abuse and substitute decision-making frameworks; and a third by Charmaine Spencer on ageism and age discrimination in health and housing law. These papers are available on the LCO’s website at www.lco-cdo.org/older-adults-call-for-papers.

In the fall of 2010, the LCO co-hosted the 2010 Canadian Conference on Elder Law, in partnership with the CCEL (affiliated with the British Columbia Law Institute) and ACE. The Conference brought together a wide range of academics and experts, professionals, service providers, and community and advocacy organizations to consider the themes of ageism and the law, law reform and older adults, and access to justice for older adults.  Approximately 100 presenters and speakers shared their research and ideas, and the Conference resulted in a significant number of new papers, which are available on the LCO website. 

To guide its work, the LCO has formed an Advisory Group which provides advice on outreach and on approaches to the substantive issues at stake in the process. A full list of Advisory Group members may be found in the front matter of this Interim Report.  The LCO would like to extend its sincere thanks to the members of the Advisory Group for their invaluable assistance in the development of this Project to date, and their dedication amidst their many commitments.

 

3.                  The Primary Goal: Developing an Anti-Ageist Approach to the Law

The concept of “ageism” is relatively recent, generally being traced back to the work of Dr. Robert Butler beginning in the late 1970s. There has been growing recognition of the role of negative attitudes and stereotypes in shaping the experiences and treatment of older persons, and the importance of addressing these attitudes and stereotypes in order to ensure fairness and equality for older persons. 

In keeping with developments in areas such as disability and the law, and gender and the law, some have begun to conceptualize ageism, not only in terms of individual attitudes, but also in terms of structures, systems and institutions. Ageism may be reflected in the issues the law does or does not address, in the assumptions that are embedded in the law and the structures that are designed to implement the laws.  

Given the mandate of the LCO to address the relevance, effectiveness and accessibility of the law, considerations of how ageism may operate in and through the law are central to the LCO’s development of a framework for the law as it affects older persons, and are dealt with in detail in Chapter III of this Interim Report.   

 

4.                  This Interim Report and Next Steps

This Interim Report is the product of the LCO’s extensive research and consultation as outlined above, and marks a significant milestone in this project.  

It outlines in detail the key components of the LCO’s proposed anti-ageist approach to the law. These include:

  • the circumstances and characteristics of older adults to consider for purposes of inclusive design and targeted programs;
  • approaches to identifying and addressing negative stereotypes and attitudes about older persons in the law;
  • principles for an anti-ageist approach;
  • an analysis of the ways in which the law affects older adults; and
  • strategies for enhancing access to the law for older adults. 

These components are synthesized into a proposed evaluative framework for an anti-ageist approach to the law. Finally, an example of the application of this analytical framework is set out with respect to the Ontario law regarding access to home care supports. 

In order to provide context and nuance to the analysis and the proposed framework, we have included throughout detailed examples of particular issues from the law as it affects older adults, whether as illustrating common barriers in the law or best practices for an anti-ageist approach to the law. The examples are selected from issues that were identified through our Pre-Study as being of particularly urgent concern to older adults.  

This Interim Report has been widely disseminated for feedback, as well as posted on the LCO website at www.lco-cdo.org. Based on the responses, the LCO will prepare a Final Report for the approval of the LCO Board of Governors. 

The LCO encourages all interested persons or organizations to share their comments and suggestions for the improvement of the LCO’s analysis and proposed framework. The LCO requests that all feedback be forwarded to us by end of day on Friday, November 18, 2011.  Further information on how to participate in the consultation process for this next phase of this project may be found in the final section of this Interim Report, “Next Steps”.

 

B.    Approaches to Developing a Framework for the Law as it Affects Older Persons

In developing its proposed framework for the law as it affects older persons, the LCO has employed a number of approaches as starting points.  

 

1.                   The LCO’s Mandate and Access to Justice

The LCO’s mandate is, in part, to recommend law reform measures to enhance the relevance, effectiveness and accessibility of the law, and to improve the administration of justice through clarification and simplification of the law; in short, to increase access to justice.   

In developing a framework for the law as it affects older adults, the LCO must therefore consider issues not only of consistency, clarity and efficiency, but also such questions as:

  • Does the law address the issues of importance to older adults? Does it do so in ways that are meaningful?
  • Does the law effectively address the needs and circumstances of older adults? What principles and approaches can best ensure that the law is effective in addressing the needs and circumstances of older adults? Where the law is ineffective, do the shortfalls result from the design of the law, or from its implementation?
  • What do “access to the law” and “access to justice” mean for older adults?  What barriers do older adults experience in accessing the law? What are best practices for promoting access to the law for older adults? 

 

2.                  Building on What Has Been Done

In recent years, there have been several important initiatives relevant to the law as it affects older adults. The LCO has aimed to incorporate and, where possible, synthesize the insights and frameworks employed by these initiatives as a foundation for this project. In particular, the LCO’s project has been shaped by the following initiatives: 

  1. The National Framework on Aging (NFA)[5] and Policy Development Guide:  The NFA was developed jointly by the Federal/Provincial/Territorial Ministers Responsible for Seniors in 1998, and supplemented by the Policy Development Guide released in 2009. It adopted as its vision “Canada, a society for all ages, promotes the well-being and contributions of older people in all aspects of life”, and identified five inter-related principles of dignity, independence, participation, fairness and security. 
     
  2. International Principles for Older Persons[6] (IPOP): The 1991 IPOP, together with the Madrid International Plan of Action on Ageing (MIPAA)[7], are the most important international documents related to older persons. The IPOP provide a broad and general framework of principles, applicable across a wide range of cultures and circumstances, which can guide states in their policy and program development. 
     
  3. The Senate Special Committee Report on Aging:[8] The Committee released its Final Report in the spring of 2009. The Committee reviewed public programs and services for seniors, identified the gaps that exist in meeting their needs, and examined the implications for service delivery in the future as the population ages. In developing its Report, the Committee consulted widely and across the country with both older adults and organizations that work with or for them. 
     
  4. Ontario Human Rights Commission Project on Human Rights and Older Persons: In 1999, in order to honour the International Year of Older Persons, the OHRC launched a project on human rights and older persons. Based on its research and public consultations, the OHRC developed a consultation report and recommendations, A Time for Action,[9] and a Policy on Discrimination Against Older Persons because of Age,[10] which set out an analytical framework for understanding ageism and age-based discrimination against older persons in the human rights context.   
     
  5. The Advocacy Centre for the Elderly (ACE):  ACE, operating since 1984, was the first legal clinic in Canada with a specific mandate and expertise in legal issues of the older population. It provides both individual and group client advice and representation, as well as conducting public education and law reform activities. In so doing, ACE is guided by the overarching principle that “seniors are people” – they are presumed to be capable of making decisions for themselves and have the right to make foolish decisions if they so choose. ACE has also focused attention on the phenomenon of “good law/bad practice” and widespread non-compliance with or paternalistic application of laws meant to protect the rights of older adults. 
     
  6. The Canadian Centre for Elder Law (CCEL): CCEL, established in 2003, is an offshoot of the British Columbia Law Institute, British Columbia’s law reform agency. It is a national, non-profit centre focused on exploring the legal issues of particular legal interest to older Canadians, and has conducted research and law reform projects on a variety of issues, including viatical settlements, adult guardianship laws, reverse mortgages and predatory lending. 
     
  7. Ontario Public Service Inclusion Lens: The OPS Inclusion Lens is a comprehensive analytical tool developed by the OPS Diversity Office to assist OPS staff in considering various dimensions of diversity in developing, implementing or reviewing policies, programs or services. Seventeen dimensions of diversity are identified in this tool, including (both younger and older) age, disability, gender and socio-economic status.
     

As well, many of Canada’s law reform agencies have undertaken important projects on various issues affecting older adults. This includes the Law Commission of Canada’s project on Law and the Relations Between Generations; the Nova Scotia Law Reform Commission’s projects on Grandparents’ Rights and on Seniors’ Only Housing; the Western Conference of Law Reform Agencies project on enduring powers of attorneys; and several others.[11] 

In particular, the work of the Federal/Provincial/Territorial Ministers responsible for Seniors in developing first the National Framework on Aging and recently the Seniors Policy Lens provides a strong foundation for the development of a consistent, principled approach to the public policy issues surrounding older age, and the OPS Inclusion Lens provides an example of how diversity-related considerations may be translated into practice. 

This project builds on this work to examine in-depth and in a holistic manner the particular issues surrounding the law and older adults, and the implications for the design and implementation of laws and policies of both general and specific application.

 

3.                  A Holistic and Contextual Approach

As the LCO’s Strategic Plan outlines, the LCO, like many other contemporary law reform bodies, undertakes both relatively narrow, focused and technical projects as well as large, socially oriented projects that require multi/interdisciplinary approaches and broad consultation and collaboration. This project falls into the second category. 

In understanding the experiences of older persons with the law, the LCO has considered not only relevant legal research, but also social science, medical and policy research.  The LCO has sought to understand the social, economic and medical contexts in which older adults encounter and experience the law, and to find approaches which will enable law-makers and policy-makers to take these circumstances into account in designing and implementing laws and policies that may affect older persons. 

This includes consideration of a life-course approach to the experiences of older adults. The health, wellbeing and economic and social security of older adults will inevitably be significantly shaped by their experiences as children, youth and adults. For example, the World Health Organization has pointed out that policy on health and aging should be shaped by the recognition that the origins of risk for chronic conditions such as diabetes and heart disease begin in early childhood and are shaped and modified by factors across the life span, such as socio-economic status. Thus, the risks of non-communicable disease should be addressed throughout the life-course, in order to enhance opportunities for health and active aging.[12] The NFA recommends that policy developers consistently give consideration to the cumulative impacts on later life of policies and programs targeted at earlier life stages.[13]  This Project recognizes that the adoption of a life-course approach to aging can enhance understanding of the experiences and circumstances of older adults and support the development of more effective policy approaches, and will apply a life-course analysis to law and policy related to aging as appropriate. For example, the Keynote Speaker at the 2010 Canadian Conference on Elder Law, Mr. Justice Murray Sinclair, Chair of the Truth and Reconciliation, highlighted how the early experiences of Aboriginal older adults with residential schools and the historic relationship of Aboriginal Canadians with the law continues to shape how Aboriginal older adults relate to law and government.  

It is important to recognize that the life-course will vary based on a range of factors, such as gender, education, racialization, place of birth, sexual orientation and the presence of a disability. For example, women and men on average continue to have different patterns of labour force participation, with women’s labour force participation being significantly shaped by their greater carriage of caregiving responsibilities. This has significant implications for old age, affecting the retirement patterns, income security and social networks of men and women. Public policy must take into account these differing life-course patterns.  

The adoption of a life-course analysis supports the recognition of the diversity of older persons.  Because of the impact of varying life-courses, diversity among individuals tends to increase, rather than decrease with age. Older adults are not a homogenous group, and understanding their experiences with the law requires a nuanced understanding of the impact that differences in economic status, geographic place of residence, early education opportunities, work experience, age, gender, racialization and multiple other factors play in their experience of law. 

 
4.                  A Principles-Based Approach  

The LCO is building on the foundation established by the NFA and the IPOP, as well as the work done in developing the Seniors Mental Health Policy Lens and the Prevention of Elder Abuse Policy and Program Lens in basing its approach to the law as it affects older adults on a set of principles. Principles can provide a normative framework for the law and identify the goals which laws and policies ought to seek to achieve with respect to older persons. A framework that is based on principles can provide guidance while remaining flexible and applicable in changing circumstances.  

Identification of these principles, while important, is a starting point rather than an end point. The difficult task remaining is to develop a nuanced understanding of what these principles could and should mean in the context of the lives of older adults, and providing a practical guide to their implementation in a legal setting.   

In certain situations, the principles themselves may be in tension and it may therefore be necessary to determine how those tensions might be resolved. This presents a challenge in the implementation of a principles-based approach, but has the benefit of providing a means of articulating and analyzing the complexities inherent in the law as it affects older adults. 

Finally, as part of a principles-based approach, one must recognize that even where one would aspire to implement all the principles to the fullest extent possible, there may be other constraints that might limit the ability of law and policy makers to do so.  These constraints may include policy priorities or funding limitations among others. That is, it may be necessary to take a progressive implementation approach to the full realization of the principles.  A progressive implementation approach involves concrete, deliberate and targeted steps implemented within a relatively short period of time, with a view to ultimately meeting the goal of full implementation of the principles. At the same time, recognition of the principles allows us to identify the distance still to go to reach the ultimate goal of anti-ageist law.

 

5.                   Including the Perspective of Older Adults

While principles provide an essential normative element for a framework, any work on issues related to older adults must nonetheless be grounded in the lived experiences and circumstances of older adults themselves. Principles which do not reflect and respect the circumstances and experiences of older adults will lead to ineffective programs, policies and laws. Therefore, an emphasis on the experiences and perspectives of older adults will be central to the framework itself, including the application of the framework to development of particular areas of the law.  

Reflecting this, the LCO is committed to consulting directly with older adults in developing the final framework, and ensuring that the voices and perspectives of older adults are reflected in the outcome of this project.

 

6.                  Providing a Starting Point

Elder law itself is a relatively new field. Although in the United States work on these issues pre-dated attention in Canada and the Older Americans’ Act of 1965 drew attention to issues of nutrition, socialization and housing for older persons, it was not until 1979 that the American Bar Association established its Commission on the Legal Problems of the Elderly, and it was not until the mid-1980s that the National Academy of Elder Law Attorneys was formed.[14] 

In Canada, there are very few elder law courses taught in Canadian law schools and the legal academic literature is relatively sparse. Specialized legal practitioners are rare. Until recently, ACE was the only legal clinic in Canada with a mandate focused on the needs and experiences of older persons. 

However, this is changing. The voices of older adults are increasingly heard in society at large, and more attention is being paid to the experiences of older adults with the law. Concerted advocacy by older persons led to the repeal of laws permitting mandatory retirement in Ontario and British Columbia, and highlighted the importance of laws taking into account the needs, rights and circumstances of older adults. A new specialized clinic for older persons has very recently been opened in British Columbia, and there are projects across Canada aimed at making the law more accessible to older adults. CCEL has brought a concentrated law-reform focus to the needs of older adults.   

This is therefore very much an evolving area of the law. The LCO recognizes that this project cannot provide the final word in this area; rather, it aims to provide a solid foundation for further research, analysis and debate.

 

C.     Some Comments on Terminology

There is no generally accepted term used to refer to persons who are “older”. Terms in common usage include “seniors”, “elders”, and “older adults”. The terms “Third and Fourth Agers” are also in use, although more rarely.[15]  

The term “seniors” is widely used, and is perhaps the most common term in general parlance. It is frequently used in government, particularly in association with age-specific government programs such as pensions and income-supports. As such, it is often associated with a chronological approach to aging and used to identify those who have passed the legal threshold for qualifying for important programs such as Old Age Security and the Canada Pension Plan. For these reasons, Statistics Canada uses the term specifically to refer to persons age 65 and older.[16]  

The terms “elders” or “the elderly” are somewhat less commonly used, partly because of the potential confusion between the use of the term to refer to older persons as a general group and the use of “elders” to refer to Aboriginal Elders, and partly because the term “elderly” has connotations of frailty and dependence that may reinforce stereotypes.  

The terms “older adults” and “older persons” have become increasingly popular, particularly in the international and the human rights spheres. They emphasize the relative nature of aging and avoid the negative connotations associated with some other terms.  

For the purposes of this Interim Report, the term “elder” will be used only to refer to those persons within the Aboriginal community who fulfil the particular cultural and community role associated with Elders. The term “seniors” will be used where a reference to chronological aging is important, i.e., where the issue is qualification for a particular program or benefit that includes a specific older age (usually age 65) requirement. For other purposes, the LCO will use the terms “older person” or “older adult”.

Depending on how it is defined, “old age” can embrace a very considerable span of time, covering thirty years or more. Over such a lengthy span of time, the circumstances of any individual are likely to change appreciably, such that the term obscures significant variance in circumstances. Therefore, older adults are frequently broken down into subgroups – the “young old” aged 65 to 74, the “middle old”, aged 75 to 84, and the “old old” or “frail old” aged 85 and older – on the basis that there are significant differences in health, participation, income, living arrangements and other key indicators among these three groups.[17] Some have raised concerns that, while the use of these subgroupings aims to reduce stereotypes about older adults, the terms retain the problem of obscuring the great individual diversity in the aging process, and may only succeed in pushing ageist stereotypes and attitudes further back, onto the “frail old” sub-group[18]; therefore, this is not a practice that the LCO will adopt. 

 

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