Like all of us, older adults generally live in a web of interdependent relationships with spouses or partners, children, siblings, extended family, chosen family or friends. In some situations, the older adult may be primarily a provider of care; in other situations, they may be primarily a recipient of care; and in most cases, they will both give and receive care and support. Regardless, these relationships have a significant impact on the wellbeing of older adults.
A. Recognizing Relationships of Importance to Older Adults
A number of concerns have been raised regarding the way in which the law has recognized, regulated and supported the relationships of older adults.
As a starting point, the law does not always adequately recognize and respect the importance of relationships in the lives of older adults. The Advocacy Centre for the Elderly points out that there is currently no comprehensive legislation dealing with the issue of access to older adults, and that they regularly receive calls from individuals who are being denied access to a parent, spouse or friend because a caregiver or other individual is prohibiting access:
The capacity to decide what visitors or what contact an older person may wish to have is a capacity that may remain intact long after other types of capacity have been lost. A senior may continue to enjoy contact with relatives and acquaintances long after the senior has stopped being able to manage property, to make treatment decisions or to retain recent memory. The comfort derived from human contact is a very basic comfort which can have a large impact on an individual’s quality of life. However, persons who are competent to decide who they want to visit may have trouble exercising this right. They may have mental or physical limitations, such as the inability to use a telephone or the inability to ambulate.
In the same vein, First Available Bed policies may result in the separation of the older adult from his or her spouse, family or friends.
Where the law has recognized the relationships of older adults, it has not always done so equally. For example, it was pointed out that ageist assumptions regarding older persons mean that they are typically regarded as recipients of care: situations where older adults are providers of care are typically under-recognized and under-supported. A number of consultees pointed to, for example, the frequent failure to recognize the important role that grandparents play in the lives of their grandchildren, sometimes as primary caregivers. Many submissions raised the difficulties faced by aging parents of persons whose disabilities necessitate significant care and support and pointed to the lack of recognition and support for these caregivers:
“There are far too many examples of 70, 80 and 90 year olds in Canada being the primary and sole caregivers for their elderly sons and daughters or spouses with a disability. At the same time, there are far too many older adults with intellectual disabilities who, only because of lack of income and disability supports and community capacity to assist, have not made what society values as an essential transition to adulthood – moving from one’s parental home to establish one’s own home in the community.”
– Canadian Association for Community Living
As well, ageist assumptions that, for example, older persons are not sexual or are unable to make responsible decisions about their relationships may mean that older persons are prevented from pursuing or maintaining meaningful relationships, particularly in institutional settings.
Heterosexist or culturally based assumptions about the nature of the family may mean that significant relationships of care and support may not be recognized. The LCO heard that many older LGBT adults do not tell their birth families about their chosen family. Therefore, chosen family members may not be recognized when older LGBT become ill or lose capacity, and are often excluded. Chosen family members may not be permitted to visit patients in intensive care, to make health care decisions and or to receive information about any changes in the patient’s condition. This can result in significant isolation for LGBT older adults who are ill.
B. Exceptional Demands Placed on Relationships of Care and Commitment
“CACL believes that the law must begin to articulate the expectations of family caring relationships and the rights and responsibilities of family members to such relationships.”
– Canadian Association for Community Living
Many consultees expressed the view that the law inadequately supports those who provide care to family and friends.
“We believe all governments in Canada have a responsibility to address this untenable reality. The first step … is to distinguish family caring relationships from caregiving relationships that go beyond societal expectations of what family members generally owe each one another. We believe that the point at which family caring relationships cross this threshold – to be characterized primarily as caregiving relationships – that a right to support, for both family caregivers and receivers, is born.”
– Canadian Association for Community Living
This affects older adults both as providers and as recipients of care. The Ontario Human Rights Commission expressed concern regarding the impact of the lack of supports for eldercare on both older adults and those providing care for them:
As the Commission reported in A Time for Action: Advancing Human Rights for Older Ontarians, the lack of social supports for family members providing eldercare remains a significant and pressing issue. The Commission heard …. Of the growing and urgent need related to eldercare, which is largely provided in the community by family members. The lack of support for eldercare by government, employers and service providers has a significant impact on the quality of life of older Ontarians, as well as on those who are providing eldercare.
The Advocacy Centre for the Elderly argued that this is not actually an issue regarding relationships at all, but rather a matter of the failure of governments to put in place appropriate supports for home care and other scarce resources:
Eldercare is largely provided in the community by family members. Not only does it facilitate “aging in place” but it saves public resources. Regrettably, the services in place to support family caregivers are extremely limited, resulting in an “all or nothing” system where families feel they have no choice but to put their loved one into a long-term care facility.
The Canadian Association for Community Living notes that when relationships of caring and commitment are overextended by caregiving responsibilities, relationships can become compromised in ways that put at risk the carereceiver, the caregiver or careprovider and their family unit. The recipient of care is placed in a position of vulnerability and dependency, while the careprovider may experience significant and long-term financial, emotional and social disadvantage. The result may be family breakdown, inappropriate institutionalization of the older adult, or even violence and abuse.
In this regard, the Canadian Association for Community Living argued that law reform should recognize a set of principles for family caring relationships based on health and well-being, respectful interdependence, full and equal citizenship, self-determination, security and mutual recognition. This requires steps to ensure a right to supports as necessity for independence and inclusion in the community, reform of eligibility criteria and job protection to increase the economic security of caregivers, and establishment of an “Office for Vulnerable Adults” to intervene where an older person is at risk in any environment.
C. Law and the Regulation of Relationships
The relationships of older adults are often complex, and may operate in a grey zone. It may be difficult to distinguish care from control, or cultural, social or gender norms from exploitive behaviours. For example, the LCO heard from members of the African Canadian community that while churches may be a vital and cherished source of emotional, social and other supports for older adults, at the same time, the dependency of older adults on these institutions may leave these individuals vulnerable to financial exploitation or other forms of manipulation.
Given the complexity of family dynamics, legal solutions may be inappropriate or ineffective. For example, the Family Law Act provides a venue for parents in need to compel their children to provide them with financial support. This provision has been very rarely used; while it may make theoretical sense, given the realities of most parent-child relationships, in which parents are very reluctant to take legal action against their children, it is an impractical solution to the problems arising where adult children neglect their parents.
The British Columbia Law Institute points out that most of the legal issues surrounding the relationships of older persons arise in intensely personal and private contexts, such as physical, financial or emotional abuse, caregiving, or powers of attorney and personal planning. Therefore, difficulties lie in the way of monitoring and enforcement and this casts doubt on the efficacy of the legislative solutions that currently exist. The Ontario Bar Association expressed concerns regarding the operation of the law in the context of family conflict, noting, for example, that legislative drafters did not contemplate the manner in which substituted decision making laws might foster conflict, and the obstacles to access to the remedies:
“When the Substitute Decisions Act and the Health Care Consent Act, 1996 were passed into law, they did not anticipate the degree to which these laws would be applied in the context of “high conflict” families. A significant number of court applications now involve substitute decision making for incapable adults and pit family members against each other. The legislation was never intended to address conflicts of this degree and type and the current processes do not lend themselves to timely or appropriate resolutions.”
– Ontario Bar Association
The LCO will consider, in its further research and analysis, how the law can appropriately recognize and support the range of interdependent relationships that are essential to the wellbeing of older adults. There are complex issues with respect to the recognition, support and regulation of the relationships of older persons, including those related to the recognition and respect for the sexuality of older persons, the role of older adults as both providers and recipients of care, and the role of the law in managing and regulating complex family dynamics.
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