Band 21, Heft 1

Twenty-five years have passed since my first exposure to the field of “elder law.” From a “young” master’s student I have become a law professor and a gerontologist who specializes in law and aging. The journey I have personally experienced in the last quarter-century provided me with some perspective regarding the field of elder law (or, as I prefer to call it, law and aging). In this Article, I try to summarize my experience and share some personal insights on the field. This is naturally a very personal and subjective experience. However, it may be constructive to others in shaping the next twenty-five years of the field. Hence, the goal of this Article is to provide both an integrative description of the developments in the field and some propositions for possible future directions.

This Article calls for a departure from the ‘positivist–professional’ definition of Elder Law. It offers a new definition that demands answers regarding the justifications for this legal area and the normative base that should guide its content. The paper draws on findings from a qualitative study with grown children who have an elderly parent in need. These findings point toward a) a preliminary theoretical framework that justifies a special area of Elder Law, embracing and transcending that of anti-ageist law, and b) the relevance of Family Law jurisprudence as a normative inspiration for this legal area.

In this article we examine the association between national welfare regime and the propensity of middle–aged and older individuals with adult children of their own to provide social support to aged parents. Using data from mature adults (50+) in 26 European countries, we examine whether older and younger generations compete for the time resources of the middle “sandwiched” generation, and whether national policy context shapes this competition. Contrary to expectations, we found that sandwich generation members were less likely to provide support to their parents in Conservative–Mediterranean and East European regimes, but more likely to do so in universalistic Social–Democratic regimes. This evidence supports the hypothesis that well–developed welfare states “crowd–in” family support to older individuals. Middle generation members who provided social support to their adult children tended to provide to their older parents as well. This was particularly true in the two regimes where resources and public benefits tend to be more generous and may be interpreted as state benefits that reduce intergenerational competition. Findings are discussed in terms of the capacity of state policies to shape the allocation of family resources to older adults where extended family lineages have become the norm.

Care for older persons in India is considered to be the prerogative of the family, particularly the adult children. The legal and policy discourse reiterates this notion as well. In a country that glorifies the notion of filial piety, one finds a rising number of instances of parental neglect and abuse over the last decade. Against this background, it is important to revisit the existing laws, especially the Maintenance and Welfare of Parents and Senior Citizens Act (2007) which aims to provide relief to aggrieved parents and senior citizens. In this Article, I analyse the relevant laws and discuss the nature of complaints lodged by elderly parents at the Maintenance Tribunal in Kolkata (India). The nature of intergenerational disputes and the way they are dealt with by the Tribunal highlight the law’s inability to imagine a world of needs beyond the economic needs of survival. Despite a few positive measures, the law presently falls short of interpreting the social ‘needs’ of belongingness, retaining authority and a position of importance in the family, a set of needs that often remain unspoken and are therefore disregarded by the law’s agent (the Tribunal judge in this case). I argue that in the process of translating the ‘needs’ of older persons into ‘rights’ through the application of the law, justice is disserved.

This Article argues that a universal approach to age discrimination promotes justice (including intergenerational justice) and efficiency. As explained herein, legal regimes regulate age discrimination in employment in various ways. While some regimes create specific anti–age discrimination legislation, others ban most kinds of employment discrimination, including age discrimination, in a general way. These latter promote a universal approach to age discrimination. The current Article explores the theoretical justifications for either a particularistic or a universal approach to age discrimination. Additionally, it enriches its theoretical discussion by taking and presenting a snapshot of current litigation in Israel – a country that has adopted a universal approach to age discrimination.

Legislation for dementia care needs to be continually rethought, if the rights of older persons and other persons with dementia are to be addressed properly. We propose a theoretical framework for understanding vulnerability and dependency, which enables us to problematize the currently prevailing legal conception of adults as always able — irrespective of health or age — to act autonomously in their everyday lives. Such an approach gives rise to difficult dilemmas when persons with dementia are forced to make decisions on their own about basic living conditions, such as housing and care, without decision-making support. In Sweden, for example, such matters are frequently left to the person him- or herself to decide, often without any assistance from social workers, and with family members serving as caregivers of last resort. Using vulnerability theory as the framework for our discussion, we argue that policymakers should not apply a group-oriented approach (based on factors like age, legal status, or mental capacity) to persons suffering from dementia. The needs of such individuals are as complex and varied as they themselves are. We discuss our findings from an interdisciplinary (law/social work) research project in which we examine the dilemma that social workers face when they are required, under the terms of the Swedish Social Services Act, to determine whether persons with dementia are to be granted support. We argue further that a cross-disciplinary approach — in which vulnerability theory furnishes the framework — opens up for new ways of understanding and developing social welfare law and practice. This, we believe, can help us better address the rights, interests, and needs of people with dementia, of their families, and of professionals in the social welfare system. Finally, many of the problems faced by ageing societies in general can be understood on the basis of such an approach.

This Article uses age as an entry point for examining how temporal and methodological issues in egalitarianism make substantive equality an unattractive goal for vulnerability theory. Instead, vulnerability theory should adopt a continuous doctrine of sufficiency, which is a better fit with vulnerability theory’s underlying aims and rhetoric. Instead of evaluating what individuals have in relation to others, sufficiency refocuses the inquiry on whether we have enough throughout the lifecourse. In the context of vulnerability theory, enough should be defined as the capability to be resilient as guaranteed by the responsive state.

With populations aging worldwide, the need for appropriate and just public policy related to old age is critical. Elder law scholars can support the creation of such policy by advancing the theoretical understanding of the relationship between law and aging — understanding that can help policymakers identify and prioritize goals, and evaluate potential interventions. This Article aims to provide a framework for this work by distilling the core theoretical questions at the intersection of law and aging. It also challenges common assumptions that could pose a barrier to developing a more robust theory of law and aging. Specifically, it argues that scholarship in this area will be most fruitful if it recognizes that the study and practice of “elder law” are intertwined but not a single unified field, that “preferential” treatment of older adults can be a form of discrimination, and that old age is not a universal human experience.