Law And Aging Research Paper

Aging presents a number of challenges for law and policymaking. The elderly inevitably experience a decline in their physical abilities, which poses problems in employment and housing. Many older people suffer from chronic physical conditions that will limit their ability to care for themselves. Some suffer a significant loss of mental capacity due to dementia and other afflictions of the brain (Cox 1998). In part because of declining physical skills or the onset of a mental condition, most elderly are retired. Even those who continue to work often experience diminished incomes because they are less productive or discriminated against in the work force. Surviving spouses, in particular women, often have reduced incomes either because their deceased spouse was employed at the time of death or because the couple’s pension either ceased or was reduced at the death of the retired spouse. Because of these physical and mental changes, the elderly have special needs that nations often seek to address through social benefit programs and laws. Interestingly, law generally identifies the elderly through the use of chronological age (such as those over age 65), even though it might better identify the characteristics of aging through factors such as functional capacity, or physical and mental health (Arnold et al. 1998). Although chronological age is only a rough indicator of aging, it has the advantage of providing an unambiguous test that makes identification easier and more definitive. For example, if the nation provides an old age pension, it is much simpler to grant it to all above a certain age, rather than to identify those eligible by a more subjective categorization.

1. Income Benefits For The Elderly

The need to provide financial support for the elderly has spawned a number of social programs and laws. Most countries provide some sort of public pension, such as the social security program in the United States. Laws regulating the provision of pensions by employers to retired employees are also common. Some nations, including France, Germany, Italy, Sweden, and the United States, provide favorable tax treatment to encourage employers to provide pensions to retired employees or to increase the value of the pension to the employee; other nations, such as Canada and Japan totally or partially exempt employee pensions from income tax (Forman 1997). Laws mandating private pensions or altering the tax structure to encourage pensions often involve complex enforcement or monitoring procedures. Thus, the aging population has created a host of new laws and litigation in pursuit of adequate public and private pensions (Bodie et al. 1996).

Countries also address poverty among the elderly by outlawing age discrimination in employment. Many elderly want to work, but they are denied the opportunity because of social attitudes that equate being old with being unproductive. While it is true that some elderly cannot perform certain jobs that require great physical strength or stamina, many are quite capable of being productive workers. Some want to retire from their current employment but wish to reenter the labor force, perhaps in a less demanding job. Unfortunately, custom and prejudice can be powerful barriers to elderly employment, and, while the United States has enacted laws that prohibit the arbitrary use of age in hiring and bar mandatory retirement on account of age, in most countries age discrimination against older workers is legal.

1.1 Family Support Laws

Some countries expect adult children to support their parents. In many countries such as Japan, older persons traditionally moved into the households of their children, who supplied care and financial support. However, many countries now have laws that require adult children to support their destitute parents or reimburse the state for the cost of their support. As might be expected, these laws are controversial and not necessarily enforced. The laws often lack support because it is unclear whether their purpose is to reduce the financial burden on government or simply to endorse the ideal that children should support their parents.

As a practical matter, family support laws seem antiquated in light of governmental welfare programs that provide income, medical care, and other forms of support for the elderly. For example, in the United States, the Medicaid health and long-term care program for the poor, which is jointly funded by the federal and state governments, specifically prohibits states from enforcing family support laws against the children in search of reimbursement for benefits paid to older Medicaid recipients.

There are also ideological objections to family support laws. Some believe that the support of the elderly ought to be a governmental function rather than a family obligation. Many commentators point out that in an intact family, the adult children will almost always assist their parents. If they choose not to, perhaps they have good reasons, such as financial instability. Family support laws cannot arbitrarily set a fair level of support in light of varying financial conditions, nor can they recognize in-kind assistance by children. Even more difficult are instances in which the older person may have been neglectful, abusive, or emotionally harmful to the child.

2. Health Care Benefits

Although many nations offer health care benefits for the elderly, payment systems vary greatly. Some countries favor tax-funded health care systems, while others rely on social insurance-based health care (Hennessy 1997). Most countries, including Canada, Great Britain, and Germany, have a single healthcare system, but in a few countries there is a separate program for the elderly. The Medicare program in the United States is an example of the latter.

Because of chronic health conditions and mental disabilities such as dementia, many elderly require long-term custodial care. To meet these needs, most economically advanced countries have enacted laws creating programs to subsidize long-term care for the elderly. These include mandatory long-term care insurance, innovative housing to shelter dependent elderly, family support programs to encourage voluntary care of the elderly, and economic need-based assistance programs. All of these approaches spur activity in the private sector, as entrepreneurs seek to take greatest advantage of government aid. In turn, the government must regulate the private activity so that it does not place an undue burden on the government or otherwise pervert the aims of the government program. In short, the governmental response to a social problem creates a complex legal pattern of response and reaction.

3. Housing Needs

Housing is yet another area in which an aging population, experiencing declining mental or physical health and often financial problems as well, creates new challenges for the law. Some nations, such as Denmark, Sweden, and the United States, provide subsidized housing for the elderly. Sometimes housing for the elderly creates legal problems because it conflicts with laws that preclude discrimination on the basis of age or family status. Although age-segregated housing may discriminate against younger people, it also can create a safer environment and render more efficient the delivery of supportive services to the elderly (Frolik 1997).

4. Mental Incapacity And The Law

Aging populations force nations to confront the problem of an increasing number of mentally incapacitated elderly. Neurologic disorders such as dementia, depression, and strokes are common for the elderly and often cause loss of mental capacity (Beers and Berkow 2000). Because the legal world operates on the assumption that adults can make rational decisions, the legal system allows the creation of substitute decision makers, known as guardians, for individuals who lack sufficient mental capacity. Laws specify the process for establishing guardianship and the decisions that guardians may make for an incapacitated person.

5. Legal Aspects Of Health Care Decision-Making

Health care decision-making by the elderly can create complex legal issues with respect to who decides what is appropriate care (the patient, the physician, the family, or occasionally a non-marital partner). While the United States permits the patient to decide, other nations give the physician and the family more rights in the final decision. The most perplexing legal issue is whether health care can be terminated for a terminally ill patient when there is no further hope of recovery.

There is considerable variation among countries with respect to the discontinuation of life support and who can make that decision if the patient is mentally unable to do so (Meisel 1995). While the United States has adopted laws that enable the individual to create a living will or an advance healthcare directive (documents that state under what conditions to terminate care or identify who should decide when to terminate care), almost no other countries have approved living wills or advance directives.

The law must also respond to individuals who demand the right to terminate their lives because they are terminally ill and do not want to undergo a painful process of dying. Whether patients have the right to terminate their lives is controversial. The right of a patient to terminate an intolerable life is gaining adherents and is legal, for example, in the state of Oregon in the United States. Most jurisdictions, however, do not permit assisted suicide.

Even more questionable is euthanasia, the legal right of someone to terminate the life of another, usually terminally ill individual. Though not officially legal, in The Netherlands physicians are not prosecuted for practicing euthanasia. Many contend that demands for physician-assisted suicide and euthanasia would greatly diminish if patients, particularly the elderly, were given adequate pain relief. It is not that older patients want to hasten death so much as that they fear pain. If assured that they would be given sufficient pain relief medications, even if that were to hasten death, they would not desire assisted suicide (Meisel 1995).

6. Conclusion

The dramatic growth throughout the world in the number of older persons has raised significant legal issues in many countries. The economic, health, and social needs of the elderly differ enough from the larger population to require societal and legal responses. Although the national responses are somewhat congruent, each country will necessarily evolve policies and practices that reflect its culture and laws. Thus while rising numbers of elderly persons is a worldwide phenomena, how the law reacts varies across the globe.

Bibliography:

1. Arnold R, Graetz M, Munnell A 1998 Framing the Social Security Debate. National Academy of Social Insurance, Washington, DC
2. Baker D, Weisbrot M 1999 Social Security: The Phony Crisis. University of Chicago Press, Chicago
3. Beers M, Berkow R 2000 The Merck Manual of Geriatrics, 3rd edn. Merck, Whitehouse Station, NJ
4. Bodie Z, Mitchell O, Turner J 1996 Securing Employer-based Pensions: An International Perspective. University of Pennsylvania Press, Philadelphia, PA
5. Cockerham W 1997 This Aging Society, 2nd edn. Prentice-Hall, Upper Saddle River, NJ
6. Cox H (ed.) 1998 Aging, 12th edn. Duskin Publishing Group, Guilford, CT
7. Forman B 1997 The tax treatment of public and private pension plans around the world. The American Journal of Tax Policy 14: 299–360
8. Frolik L 1997 Residence Options of the Older or Disabled Client. Warren, Gorham, & Lamont, Valhalla, NY
9. Hennessy P 1997 The growing risk of dependency in old age: What role for families and for social security? International Social Security Review 50: 23–39
10. Lynch E 1997 Late-life crisis: A comparative analysis of the social insurance schemes for retirees of Japan, Germany, and the United States. Comparative Labor Law Journal 14: 339–84
11. Meisel A 1995 The Right to Die, 2nd edn. Wiley, New York