Executive Summary2017-03-03T18:30:50+00:00

  I.          Introduction

In 2008, the Law Commission of Ontario’s (LCO) Board of Governors approved a multi-year project to develop a coherent framework for the law as it affects older persons. The aim of this project is not to recommend specific reforms to particular laws affecting older persons, although certainly law reform is needed in many areas, but to articulate a set of principles and questions, rooted in the lived experiences of older adults, that may form the basis of a coherent analytical framework for this large, diverse and complex area of the law. 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.  The resulting Framework may also be helpful to courts addressing the interests of older persons and private actors in their policies and actions relative to older persons. 

The LCO’s approach to this project has been shaped by the following considerations:

  1. That access to justice requires looking beyond the clarity, efficiency and effectiveness of the law to considering normative issues.
  2. The importance of incorporating and, where possible, synthesizing, recent important domestic and international initiatives in the area of law and aging.
  3. The need to understand the social, economic and medical contexts in which older adults encounter and experience the law to enable law-makers and policy-makers to take them into account in designing and implementing laws and policies that may affect older persons.
  4. The benefits of a framework based on a set of principles, which can provide guidance while remaining flexible and applicable in changing circumstances.
  5. The centrality of the experiences and perspectives of older adults to the framework and its application.
  6. That the evolving nature of aging and of elder law requires the framework to be designed as a strong foundation for further research, analysis and debate. 

This Final Report is based on consultation and extensive research undertaken by the LCO, and is a companion document to the Framework for the Law as It Affects Older Adults. 

 

II.          Taking the Circumstances of Older Adults into Account

The starting point of an approach to the law that advances substantive equality is to recognize the existence of older adults as a group who may in some respects have different needs and experiences from many younger persons, whether due to the accumulated effects of their life courses, social structures, or marginalization and stereotyping of older persons, and to take those particular needs and circumstances into account when designing laws, policies and programs. 

The use of age as a way of categorizing people is so common a practice as to be almost unnoticeable. While the use of age categories risks reinforcing ageist thinking, it is at the same time indispensable in identifying and describing institutionalized ageism and in attempting to remedy its effects. 

Law commonly uses age, at both the younger and older ends of the spectrum, as a category on the basis of which distinctions may be made. Older age is often used as a requirement for access to particular benefits, or as a marker for the addition of responsibilities or requirements, or as the basis on which particular activities or benefits are restricted. If one accepts the necessity of using age as a category for some purposes, that leaves still the difficult question of how to define membership in the category of “older age”. The LCO includes in the scope of this project all those who have been identified as “old” or “older” through legal and policy frameworks, through social attitudes and perceptions, or through self-identification. 

Understanding the circumstances of older adults can be challenging for a number of reasons. Older adults make up a large segment of the population of Ontario and Canada: therefore, it can be difficult to form meaningful generalizations about their circumstances and experiences. As a result of ongoing demographic shifts, changing social attitudes and rapidly evolving legal and policy landscapes, the circumstances of older adults are constantly changing. What is true now about the experiences of older adults may not be true five years from now and may not have been true five years ago. As well, the lives and circumstances of older adults are profoundly shaped, not only by current laws and policies, but also by those that were in effect when they were children, young adults and middle-aged. To understand the current experiences and circumstances of older adults, we must view them in the context of their accumulated life experiences (that is, their “life course”). 

Education and literacy levels, labour force participation, income security, living environments, relationships and caring networks, and participation in the community are all relevant factors, as are characteristics such as sexual orientation, racialization or ethnicity, Aboriginal identity, place of residence, socio-economic status, citizenship status or other factors. Gender is particularly important, since most older adults are women, and the life courses of women differ in a number of key respects from those of men. The intersection of age with impairment, activity limitations and disability also raises issues which require greater consideration. 

Older adults have often been considered “vulnerable” as a group, and this vulnerability has been used to justify significant levels of interference with older adults’ autonomy. It is inaccurate to assume that all older adults are frail, dependent and therefore in need of protection, and equally problematic to assume that the only or the 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 a mistake to assume that all older adults are privileged, affluent and capable. In some cases, older adults are disadvantaged because of life experiences; for others, aging itself may result in risk and hardship. 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. 

Risk must also be understood in a broader social context. An older adult’s family and other relationships, living arrangements, income sources and levels, access to supports and the law itself may either increase or decrease levels of risk and inequality, depending on their quality and extent. 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.

 

  III.          Addressing Ageism and Advancing Substantive Equality: Developing a Principled Approach

For the purposes of this project, ageism may be defined as a belief system, analogous to racism, sexism or ableism,that attributes specific qualities and abilities to persons on the basis of their age. Ageism may manifest with respect to older adults in attitudes that see them as less worthy of respect and consideration, less able to contribute and participate in society, and of less inherent value than younger people. Ageism may be conscious or unconscious, and may be embedded in institutions, systems or the broader culture.  

Ageism has its roots in a set of pervasive stereotypes and negative attitudes towards older adults, several of which are explored in this Report (for example, that older adults form a homogenous group, are burdens on society, and are resistant to change). 

Ageism commonly manifests as paternalism, the tendency to remove decision-making opportunities for older persons under the guide of protecting their “best interests”. It also manifests as invisibility, such that older adults are systematically excluded from the social and public spheres.

In order to counteract negative stereotypes and assumptions about older adults, reaffirm the status of older persons as equal members of society and bearers of both rights and responsibilities, and also encourage the government to take positive steps to secure the well-being of older adults, the LCO’s Framework centres on a set of principles for the law as it affects older adults. 

Each of the principles contributes to an overarching goal of promoting substantive equality for older adults. There is no hierarchy among the principles, and the principles must be understood in relationship with each other. Although identified separately, the principles may reinforce each other or may be in tension with one another as they apply to concrete situations. The Report explains the following principles in detail: 

  1. Respecting Dignity and Worth (the right to be valued, respected and considered);
  2. Fostering Independence and Autonomy (the right to make choices and do as much for oneself as possible, with provision of supports if needed);
  3. Promoting Participation and Inclusion (the opportunity to be actively engaged in and integrated in one’s community, and to have a meaningful role in affairs and to be consulted on issues that affect one); 
  4. Recognizing the Importance of Security (including the right to be free from physical, psychological, sexual or financial abuse or exploitation, and the right to access to basic supports such as health, legal and social services);
  5. Responding to Diversity and Individuality (that older adults may also experience discrimination based on their gender, racialization, Aboriginal identity, immigration or citizenship status, sexual orientation, creed, geographic location, place of residence, or other aspects of their identities); and
  6. Understanding Membership in the Broader Community (that older adults are part of a broader community in which they have reciprocal rights and obligations).

There are challenges in applying these principles. The application of the principles cannot be static. The circumstances of older adults will continue to change as laws, attitudes, demographics and other aspects of the broader environment change. As well, understandings of the experience of aging continue to evolve, and new perspectives emerge. What might be considered conducive to attainment of the principles at one time may appear unhelpful or inadequate at a later date. 

Further, 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 realization approach to the full implementation of the principles.  A progressive realization 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.

As well, attention must be paid to the relationships between principles. Frequently, the principles will support each other; for example, initiatives that increase the inclusion and participation of older persons will generally also thereby promote respect for their dignity and worth. However, sometimes two or more of the principles may be in tension with each other in a particular case. In such cases, careful thought must be given to analyzing and responding to this tension. In assessing tensions between principles, it is essential to be sensitive to the contexts in which these tensions arise, as well as their larger social context, and the overarching value of substantive equality to which the principles were intended to respond. 

 

  IV.          Identifying Ageism and Paternalism in the Operation of the Law

The term “law” as it is used in this project refers not only to statutes, but also to regulations, to the policies through which they are applied, and to the strategies through which statutory provisions, regulations and policies are implemented and experienced by older adults. The implementation of laws is as important as their substance. Laws may be beneficial in intention and on paper, but in practice fall far short of their goals or even have negative affects. 

The current legal landscape as it affects older adults is extensive and diverse, but may be generally categorized as follows: 

  1. The Charter and Human Rights Laws: While the principles adopted for this Framework have roots in the Charter of Rights and Freedoms and the Ontario Human Rights 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.
  2. Age-Based Laws: In the case of most uses of age-based criteria, age serves as a proxy for some other quality, such as low-income, withdrawal from the workforce, health or ability limitations, or lack of legal capacity.
  3. 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 such example.
  4. 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. 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 from  other groups.
  5. Where Law is Silent: Laws 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.

An examination of laws affecting older adults reveals that ageism and paternalism may operate through the law in a variety of ways. 

  1. Stereotypes and Negative Attitudes: Stereotypes and negative attitudes may manifest in either the substance or the implementation of the law, either explicitly or implicitly, sometimes through the implementation of the law and sometimes through the assumptions and attitudes of those who are charged with putting the law into practice.
  2. Failure to Take Older Adults into Account: Laws may, in either their substance or their implementation, fail to consider the particular experiences of older adults, or may base their approach on assumptions rather than on current research and consultation with older adults.
  3. Subordinating the Needs of Older Adults:  In some cases, legislators, policy-makers, service providers and professionals, when faced with competing priorities for time, attention and resources, may choose to subordinate or to ignore the needs of older adults. 

 

    V.          Deepening Our Understanding of the Implementation Gap: Access to the Law

A key concern in the law as it affects older adults is the “implementation gap”, wherein laws which on their face are neutral or positive with respect to older adults are in practice unproductive or negative in their effects, due to inadequate implementation and poor enforcement. One important aspect of the implementation gap is access to the law for older adults, meaning the existence (or lack thereof) of effective mechanisms for accessing and enforcing existing laws. 

Although concerns regarding access to the law are not limited to older adults, fixed incomes and withdrawal from the workforce, lower than average literacy and educational levels, the onset of health and activity limitations as age advances, and limitations in life expectancy all may limit access for older adults. Some significant portions of the older adult population also have their experiences shaped by cognitive disabilities, living environments that reduce their autonomy and community inclusion, and the consequences of physical, financial or other forms of dependency.  

Older adults may be affected by the legal issues facing the population in general, but older adults are more likely to encounter issues resulting from withdrawal from the workforce or needs related to impairments or disabilities. They are therefore more likely to be users or potential users of government programs and services than many younger adults. Because issues related to the receipt of government programs and services will often involve general policies and procedures rather than individual interactions and decisions, the legal issues that older adults face may often be extremely complex and may require systemic remedies. 

As well, the importance of issues like elder abuse, powers of attorney, estate planning and informal caregiving to older adults mean that when older adults encounter the law, it will very frequently be in the context of their domestic lives and their personal relationships. This has implications for how older adults may access the law, and what outcomes they may seek from it. For example, they may be less willing to explore adversarial mechanisms for resolving issues. 

A review of key access mechanisms available to older adults reveals a number of systemic barriers to accessing the law for older adults that may play a role in the implementation gap, including: 

  1. Ageist or paternalistic attitudes on the part of those implementing the law;
  2. Inadequate training and information on the requirements of the law for those charged with implementing it;
  3. Lack of adequate oversight mechanisms for key legal rights and protections;
  4. Lack of appropriate mechanisms for recourse where rights have been violated;
  5. Lack of meaningful remedies where rights appear to have been violated;
  6. Over-reliance on complaint-based systems for redressing individual or systemic issues;
  7. Failure to recognize and accommodate the needs of older adults in the set-up and delivery of access mechanisms; and
  8. Adversarial systems that may jeopardize on-going relationships of central importance to the well-being of the older adult whose rights have been violated.

Measures to ensure access to the law and address the implementation gap for older adults include:

  1. Anti-ageist training for those interpreting or implementing laws and policies;
  2. Training on the relevant needs and circumstances of older adults;
  3. Adequate training on the law and its implications for those implementing it;
  4. Adequate resources for effective implementation of the law;
  5. Monitoring mechanisms to ensure the law is operating as intended;
  6. Ensuring that access and enforcement mechanisms take the needs and circumstances of older adults into account;
  7. Empowering older adults;
  8. Addressing systemic issues; and
  9. Alternatives to adversarial systems.

 

VI.          Applying the Framework: The Example of the Law Regarding Home Care Supports

This Chapter illustrates the application of the Framework through considering a current issue in the law as it affects older adults: the law relating to access to home care supports. The intent of this illustration is not to provide a comprehensive description of this area of the law or to propose specific reform initiatives, but rather to reflect on this area of the law in light of the anti-ageist principles and considerations that have been identified in this Report. 

A review of the law through the lens of the Framework indicates that the overall written purpose and principles of the law are in harmony with the promotion of substantive equality. Implementation concerns include the lack of clarity in eligibility criteria, difficulty in accessing information about services and rights, uneven service delivery across the province, and problematic complaints mechanisms.

 

VII.          Next Steps

It was the intent of the LCO in developing this Report, and the Framework which it supports, to assist in developing a better understanding of the effects of law, policy and practice on the growing cohort of older adults in the population, and in identifying positive approaches which will advance substantive equality for older adults. The LCO will work to disseminate the Report and Framework broadly to the groups identified above. As part of this broader strategy, the LCO will work towards the development of plain language materials related to the Framework.  

The LCO realizes that this is an evolving area. The Report and Framework should not be considered, and were not intended to be, a final word on the matter. Rather, the LCO intends that these will form the foundation of further research, discussion and analysis, and that the Framework can be adapted for use in a variety of contexts. The LCO itself intends to apply this Framework, as well as the results of the sister project on The Law as It Affects Persons with Disabilities, to a law reform project focussed on Ontario’s laws related to capacity and guardianship, to commence in summer 2012. 

 

VIII.        Recommendations

This Chapter briefly sets out the recommendations of the LCO for the future use of the Framework by a range of public and private actors and its review and evaluation after a period of seven years.

 

 

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