Elder Law’ – a brief argument for need?
Why should lawyers be concerned about any law relating to the elderly? ‘Elder Law’ has all the signs of being new (and American). It appears to comprise a range of legal areas - family law, medical law, welfare law, succession and planning being the main areas. Many practitioners are now making this area of law into an area of specialism often with financial management, wills, land and care homes, but not necessarily in that order. Older people need the law because they are either managing their own money or they are being (mis)managed, one way or another. We have an ageing population and business (if you think of it just like that) is growing. So there!
If you know nothing about the implications, then start with impressions - what does ‘old’ mean to you? Like most people - probably stereotypes such as an old woman and her grandchildren, an old man wearing a flat cap? How about grey hair, walking stick, wrinkles, and a wheelchair? You may think of carers – usually female and often the old person’s daughter – and that has implications for our society. What could be the impact of the situation on our society now and in the future? Of course, stereotypes can be very misleading. In ‘Peoplequake’ Fred Pearce, the author of this 2010 book writes that the pop stars who survived the drunken binges and fast cars are, decades later, often making more use of condoms than colostomy bags. Whilst not the usual picture of the ‘elderly’, most of the elderly who ‘rock’ seem either to be rock stars, film stars or living in some outback on a special diet and a nip of a special brew they swear by every day. We may only see the really good-looking rock and film stars doing relatively well in the media. Bottle or surgeon, clean-living or otherwise, some of our older ‘stars’ are looking good - Mick Jagger, Helen Mirren at 63 or so, Tina Turner turned 70. These people seem to have little in common with an octogenarian in a care home requiring 24 hour supervision.
We should consider the ‘elderly’ in social and personal context. We are all old to somebody, and age is as much a product of society as one of health and lifestyle. How will we deal with this, and what is the impact of the law?
The first problem is whether we take care of the elderly, or leave them to ask for care. We may take a ‘welfare’ approach with a touch of human rights thrown in for good measure. Older people as a group are not homogenous because life experiences, social class, personal background and health all impact; they and we have expectations of how ‘the old’ should be treated. Physical frailty and mental incapacity are the usual stereotypes. Not all elderly suffer to the same extent ageing effects, of course. The UK government of whatever ilk will have to deal with care of the elderly and the position of the pension ‘time-bomb’ in the future. Any policy which attempts to deal with the ‘elderly’ in our society must bear in mind that the elderly could be aged from late fifties to over a 100 – as long in being old, as getting there.
The statistics tell an interesting story. Government sources http://www.statistics.gov.uk/cci/nugget.asp?id=1263 say there were 20.0 million people aged 50 and over in the UK in 2003 - a 45 per cent increase over five decades. In 2031 there will be 27.2 million people aged 50 plus. Sixty years ago those aged 50-59 represented 43.0 per cent, and those aged 85 and over just 1.6 per cent of the 50 plus population. Just seven years ago the two age groups represented 37.8 per cent and 5.5 cent respectively. In 30 years this will be respectively 28.6 and 7.9 per cent. Get the picture? Projections for 2031 indicate a more rapid ageing of the population over the next 30 years. Population ageing is primarily the result of sustained low fertility with fewer young people in the population and hence a rise in the proportion of older people, with declines in mortality and falls in the death rates at older ages adding to the increase in the number of older people. Older women outnumber older men, still, although the difference is less than it was. The sex ratio was 85 men per 100 women in 2003, and projections indicate that the 2031 picture will be 90 men per 100 women aged 50 plus.
What of the domestic establishments? Slightly more than three quarters of the men aged 65-74 lived in a married couple household, which decreased to 61 per cent for men aged 75 plus. Among women, the percentage living in a married couple household decreased much more sharply, from 61 per cent of women aged 65 to 74 to 28 per cent of women aged 75 plus. Few people aged 65 plus cohabit, but this is becoming more common for people in their 50s - in 2007 6 per cent of men and 5 per cent of women aged 50–59 were cohabitating. The death of a spouse is increasingly more common for the elderly, particularly for women; 23 per cent of women aged 65-74 are widowed compared to 11 per cent of men of the same age. Among women aged 75 and over the percentage of widows increases sharply to 61 per cent; the percentage for widowed men increases to 27 per cent. Women live longer and tend to marry men older than themselves. Who lives where is also interesting. There was a decrease in the percentages of older people in the UK living in communal establishments between 1991 and 2001. In 2001, 5 per cent of people aged 65 plus and 20 per cent of people aged 85 plus were living in communal establishments compared to 6 per cent and 26 per cent respectively in 1991. Policy in the early 1990s re-directed expenditure from residential services to supporting people in their own homes and communities with care packages. Older women are more likely than older men to live in communal establishments – men die or are taken care of by their often younger women for longer than does the reverse situation apply. For example, of those aged 85 plus, 23 per cent of women lived in communal establishments compared to 12 per cent of men.
Planning in UK society does not take enough account of these issues and the diversity among the old, nor of the increase in numbers and any need to make suitable provision. We lack a framework of interrelated law or synchronisation of legal provision. There are legal provisions for the elderly, but when law makes provision for the elderly it is in a context of healthcare, social care and succession. Little is really considered as ‘elder law’ – not that it is not there at all, but it is not synchronised. The Human Rights Act 1998 has no age-related bar at either end of life – it is afforded to the young and there are expectations that rights should be accorded to the elderly, too, but recent media interest reveals ill-treatment and neglect. Human Rights are important in this context but the ECHR is principally for the individual rather than for any group. Considering current policy problems and financial crises, it is hard to be definite about retirement. Getting ‘old’ cannot be the same for everyone, and in any case, provisions within the European Convention are not age-related and all of the provisions must apply to the elderly as much as they do to everyone else, irrespective of age – and within reason. That may be what will affect decisions in the future.
What kinds of rights might be particularly pertinent here? The particular rights that seem to be relevant include Article 2 that guarantees the protection of life and requires positive steps by the state towards its end. Debate may not wish to mention euthanasia, or even making it easier for individual’s to decide when they wish to cease treatment – does this place the elderly in a situation of coercion? Article 8 protects the right to respect for private and family life yet the physical and psychological integrity of the elderly person seems often to be invaded. Mass homes for the elderly seem to be the way to go, yet these are the very last places we would want to end our days. Care packages in the home, allowing for the elderly to buy-in only those services they most need, needs management. Article 14 makes unlawful any discrimination on the basis of age, and it remains to be seen whether recent age discrimination provisions will protect the elderly. All this can be summarised by a moral imperative to protect the dignity of the elderly when they are vulnerable. Issues of legal rights seem to be turning elder law into a ‘problem’.
In 1999 the UN held the International Year of Older Persons and promotion of the United Nations Principles for Older Persons was focussed on establishing a framework for the basic human rights of the elderly. The Principles contain eighteen points relating to the main issues of independence, participation, care, self-fulfilment, and dignity of the elderly and these were originally adopted in 1991. In 1998 the secretary general of the UN announced that the Principles would inform the direction of policy among member states to promote the health and well-being of the elderly. Whilst worthy in its aims, failure to provide more than guiding principles and well-intentioned general aims of independence, participation, care, self-fulfilment and dignity is not necessarily helpful. Another broad and very general statement of intent resembling home-made apple pie is not always helpful because it makes us think we have made progress.
The World’s population is getting older - the World Health Organisation suggests that one in ten people on the planet are 60 years old plus. The proportions of the young and the old will crossover within three generations and there will be (man-made or natural disaster apart) more people over 60 than those below that age alive in the World. We ought to consider our laws in relation to the elderly and start from the principles by which we wish to live and see our own futures.
Penny Booth is a freelance tutor and author. She is an honorary Research Fellow at Liverpool University’s Centre for the Study of the Child, the Family and the Law. She is writing in her own capacity