It is quite remarkable to think that notwithstanding our increasingly aging demographic1, the recognition of the rights of older persons as a distinct group has been largely absent in the field of human rights. Only recently the rights of older persons as a distinct group have begun to emerge and slowly become reflected in legal thinking and legislative change. There is increasing movement towards creating a United Nations international declaration or convention on the rights of older persons, as older persons’ rights have not generally been expressly recognized at the international level. One of the objectives for creating an international convention is to provide a concrete overarching legal framework for use by government around the world, including by guiding policy-making in order to address the distinctive human rights issues faced by older persons.
Such a framework is important in the trusts and estates context, including in the challenging area of legal decision-making. When cast under the glare of a human rights perspective, much of our existing legislation for legal decision-making seems archaic.
An example of how a human rights perspective can inform policy is reflected in the work of the Law Commission of Ontario, which in early 2016 released its Interim Report on Legal Capacity, Decision-making and Guardianship (“Interim Report”). It addresses the laws that apply to how decisions are made related to property, treatment, and personal care where a person’s decision-making is impaired, as reviewed in more detail in my February 18, 2016, post. Our current system relies on substitutes, that is, other persons appointed whether by power of attorney, statute, or the court to make a decision on a person’s behalf.
The Interim Report is grounded in a legal framework adopting certain foundational principles based on human rights principles and laws as found in the Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code,and the United Nations Principles for Older Persons, including the principle of fostering autonomy and independence. As stated in the Interim Report, this principle recognizes:
“The right of older persons to make choices for themselves, based on the presumption of ability and the recognition of the legitimacy of choice. It further recognizes the rights of older persons to do as much for themselves as possible. The achievement of this principle may require measures to enhance capacity to make choices and to do for oneself, including the provision of appropriate supports.”
With regard to decision-making, the Law Commission’s key recommendation is that existing laws should reduce inappropriate intervention and better protect autonomy and self-determination, including statutory requirements to ensure a focus on the prior capable wishes of individuals, or on their current wishes and values as well as “co-decision-making” versus “substitute decision-making” to allow the incapable person to participate in and have support in making decisions, not simply taking all decision-making power away and placing it in the hands of others.
The Interim Report asserts that current law is not sufficiently effective in ensuring that individuals retain control over their choices and their lives to the greatest degree possible, and that a lengthy history of paternalism exists towards older persons, which restricts their lives and leads to negative results.
A number of other jurisdictions are currently studying or have similarly recommended or enacted legal changes to modernize laws regarding legal decision-making from a human rights perspective. For example, British Columbia’s Representation Agreement Actis recognized as pioneering legislation for supported decision-making. Each of Manitoba, Saskatchewan, Alberta, and Yukon has some form of supported decision-making.
It will be interesting to see how the rights of older persons in the human rights context evolve in the area of legal decision-making and other important legal areas that impact older persons. It could not be timelier, as these issues affect every one of us and our family members in the most fundamental of ways.
1. The number of persons aged 60 and over is anticipated to rise from currently 740 million to 1 billion by 2020 (United Nations Human Rights – Office of the High Commission, www.ohchr.org).
Courtesy Fundata Canada Inc. © 2016.Margaret O’Sullivan is the principal of the Toronto-based trusts and estates law firm O’Sullivan Estate Lawyers.This article is not intended as personalized advice.