IV. STEREOTYPES, AGEISM, PATERNALISM AND THE LAW

IV. STEREOTYPES, AGEISM, PATERNALISM AND THE LAW2017-03-03T18:30:48+00:00

Although ageism[13] 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.  

  • Older adults are the subject of a range of negative stereotypes and assumptions, such as:
  • Older persons are inflexible, resistant to change, and have difficulty learning new things;
  • Older persons are chronically ill, dependent, and no longer make a contribution to society;
  • Older persons are a burden on their families and loved ones, as well as on society at large;
  • Older persons are depressed, isolated and waiting to die;
  • Older persons have declining capacity, are incapable of making responsible decisions, and must be protected from themselves.
     

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”.  

As an example, concerns about stereotypes and ageism have been raised in discussions regarding the legal frameworks surrounding decision-making by older adults.[14] As individuals age, they become more vulnerable to diseases and health conditions that may affect their ability to make informed decisions regarding their medical treatment, personal care, living arrangements and finances. This reality must be balanced against the fact that most older adults do not experience a diminishment in their decision-making abilities, that even where there is some decline, capacity is rarely an all or nothing proposition and that great care must be taken to ensure that decisions about capacity are not tainted by ageism, paternalism, or stereotypes. The protection of the older person must be weighed against the importance of maintaining his or her independence, autonomy and dignity, and the laws governing capacity and decision-making must maintain a delicate balance. It is therefore not surprising that this area of the law has been the subject of extensive research and discussion.[15]  

Approaches have varied between Canadian jurisdictions. In Ontario, the main statutes are the Health Care Consent Act, 1996,[16] which sets out procedures and requirements for consent to medical treatment, admission to care facilities, and personal assistance services, and the Substitute Decisions Act, 1992,[17] which deals with procedures for making decisions about property or personal care where an individual no longer has capacity to do so.  These laws were passed as part of a wider movement towards reform across Canada, which placed a new emphasis on procedural fairness, improved procedures for assessing capacity, and enhanced protections for the autonomy and self-determination of persons with disabilities.   

Interestingly, the new United Nations Convention on the Rights of Persons with Disabilities, which Canada has signed but not yet ratified, includes specific provisions with respect to capacity and decision-making for persons with disabilities.[18]  It remains to be seen whether these provisions of the Convention will influence Canadian laws on capacity and decision-making.

Question 3:  Do negative attitudes or stereotypes about the characteristics, capacities or contributions of older adults affect the law or the administration of the law? Does the law adequately take into account the needs and experiences of older persons? Are there specific issues or areas of the law that are of concern?
 
 

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