Why Law and Aging?

I am passionate about legal issues related to aging. My research is not exclusively focused on older adult issues. However, this is one of my priority areas. This area of law is commonly referred to as law and aging or elder law.

Elder law refers to laws that have a significant impact on the older adult population. Ironically, the term elder law is sometimes used more narrowly to refer to guardianship laws or wills and estates when there are many other issues relevant to older adults, which have significant importance to them.

There are a number of reasons that I am passionate about these issues.

• First, I believe that many of the issues related to “Law and Aging” are being overlooked in current scholarship.
• Second, many of the relevant issues involve legal rights. More research is needed to identify how laws impact older adults and the implications on rights.
• Third, I believe that research on these issues is timely. These issues will become increasingly important because of the demographic shift that is occurring. According to Statistics Canada the number of persons aged 85 and older doubled between 2001 and 2021. Statistics Canada projects that this number will triple between 2021 and 2046.[1]

I believe that one reason that “Law and Aging” is an under-researched area is because of the lack of definition about who is older. In Canada there is no agreement about the chronological age that marks the beginning of being “older”. In addition, insufficient recognition has been given to the broad diversity among the older adult population and how this may impact research.

Simply put, a particular issue may affect some adults who are older but not all of them. It would be a mistake to fail to consider how an issue may be related to the effects of aging even if it doesn’t affect all older adults. It would also be a mistake to assume that an issue that affects some older adults, or more older adults than younger adults, affects all older adults.

One example of this is dementia. The majority of older adults do not develop dementia. However, there is an increased prevalence. Dementia rarely appears in persons under 60, it affects 6 in 100 people over age 65 and 20 in 100 of people over 80.[2] I would argue that because there is a higher prevalence this is an issue related to aging.

For adults that develop dementia, there are myriad legal issues that apply to their situation. These range from legal issues related to healthcare to legal issues related to advanced planning. Legal issues indirectly related to dementia may arise for some individuals. For example, if the adult is a witness to a crime, the officer interviewing the adult may need to modify the interview to accommodate the disability.

Sometimes legal issues related to aging have legal rights implications. Using the example of dementia once more, adults with early-stage dementia are often denied the opportunity to make decisions about matters that affect them, even when they have the legal right to do so. For example, a healthcare worker may ask a family member to make a health care decision when the adult still has legal capacity to make the decision.

The research needed on issues at the intersection of law and aging spans many areas of law. For example, in the criminal law context there are questions about how to effectively respond to elder abuse. In the employment context issues of discrimination against older workers need to be addressed. In the human rights context discrimination may occur related to services and accommodation based on older age and disability. In the health care context there are issues related to older adults receiving substandard healthcare services or not receiving services they are entitled to. These are only a few examples of how the law may impact the aging adult.

I began this article by stating that these are issues I feel passionate about. My interest in these issues developed when I was in legal practice with older adult clients. Until then I was unaware of many of the unique legal needs and issues related to aging and the challenges that some older adults face in accessing their legal rights. I realized that new approaches are needed to address legal and policy issues in this area, which is the focus of my current work. As such, my work as an academic is informed by my experience as a practitioner.

[1] See, Statistics Canada, “In the Midst of High Job Vacancies and Historically Low Unemployment, Canada Faces Record Retirements from an Aging Labour Force; Number of Seniors Aged 65 and Older Grows Six Times Faster Than Children 0-14” (April 27, 2022) The Daily, online <https://www150.statcan.gc.ca/n1/daily-quotidien/220427/dq220427a-eng.htm>

[2] H Cayton, Alzheimer’s and Other Dementias: The ‘At Your Fingertips’ Guide’: The Fully Updated and Comprehensive Reference Book for Alzheimer’s and Other Forms of Dementia (London: Class Publishing, 2002).