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Sunday, February 15, 2015

What Are the Rights of The Elderly and Are they Different from the Rights the Rest of Us Have?

In the 1990s, while working at CBC Radio`s Morningside, I produced a series of conversations about the then emerging field of elder law. Most of the work being done was in the area of living wills, obligations parents owe to children and vice versa and whether any or all the rules change when one party to any transaction or issue reaches the milestone of 65 years of age.

Nearly two decades later, I am visiting the Evita Museum, just around the corner from the zoo in Buenos Aries. Argentina is not an easy country or culture to crack but it is clear that Evita, the Show Girl turned National Hero is an important piece to understanding the last 60 years of the country`s history. It is during the playing of one of the several newsreel type movies about Evita and her time on the national scene that I am brought up short by one of the subtitles that declares that in 1948 Juan and Evita Peron introduced legislation enshrining the `Rights of the Elderly`. There are no further references to the content of these rights at the museum but it is the phrase itself that gets me remembering and thinking. I know that the third phase of our lives is filled with changes in attitudes and opportunities, but does it also change our legal status?

A couple of years ago, our daughter Jane came upstairs to our kitchen at breakfast time and, while she was waiting for the kettle to come to a boil, asked me what a living will was. I took her through the basics and she seemed slightly perplexed and asked what Power of Attorney was and I explained that and she then asked if I and her mom had made arrangements for a Power of Attorney. When I said no, she asked if we wanted to give her Power of Attorney. I laughed and said a first rule of life is never give Power of Attorney to someone who asks to have it. She laughed, made an instant coffee and headed back to her room

That's story makes me laugh because Jane is one of the most truly kind and generous individuals I have ever met, certainly kinder and more generous than me and so I don't actually worry about the idea that control over my life might fall to her. But the reality is that all kinds of people, good people with good children, worry about what life might be when they are no longer in 100% control or even 50% control. Blanche DuBois, in A Streetcar Named Desire, is wrestling with a double edged sword when she says "Whoever you are, I have always depended on the kindness of strangers."

In January, The New York Times ran a fascinating story about the increasing frequency of nursing homes seizing power of attorney over patients to collect debts, often without informing family members in advance. It is enough to cast a cold chill over any of us, regardless of how many years remain before a nursing home becomes a likely possibility. At the heart of any sense or idea of Elder Rights are questions or control, respect, attention and compassion. 

It has been nearly 70 years since the Peron Government experimented with the idea of Elder Rights and a quick or even exhaustive Google search leaves me still wrestling with what exactly would those rights are. Would subways have the power to insist that you give up your seat to a senior citizen, would Seniors Tuesdays at Shoppers Drug Mart become the norm and legally binding for all stores? Would seniors be entitled to a greater degree of respect and attention than anyone else in society? It doesn't require much imagination to realize that all of those ideas are more than slightly askew and unlikely public policy initiatives. 

After all there is nothing magical about turning 65, or 60, or 55...wherever that  'freedom at' figure falls for you and suddenly fearing a loss of control or needing some reassurance that you are still a valued if slightly less valuable member of society. A 30 year old contingent worker relying on a whimsical supervisor for the number of hours of work they might get that week probably feels a lot less powerful and in control than a 75 year old with a defined benefits pension and the ability to spend the entire winter relaxing far from bitter winds and deep snow. 

If there is one area where the 'Rights of Elders' might be made concrete it is probably with questions about whether the things being done for the person or to the person are in their best interest. And then to make it that much more complicated, how do we define 'their best interest'? When public services, including health services, are under strain how do we ensure that the provision of services is equitable? Does the 80 year old have less of a right to dialysis than the 30 year old, and, if so, what is the value system we are using to make that determination? 

I don't have easy answers to any of these questions. I know for some disabled activists and some elder advocates the recent Supreme Court of Canada decision on medically assisted death raises a host of complicated ethical questions, not the least of which is how do we ensure that the wishes of the person in question are adequately represented. 

After leaving the Evita Museum, Debi and I had lunch at a very nice coffee shop on a leafy square and we talked about Evita and the idea of the rights of the elderly. We talked about our parents and others we knew and the problems that can and do occur as families drift apart and the elderly are left at the mercy of individuals and institutions that have other priorities, other demands that might at times trump the needs and wishes of the person in question. During that conversation the idea of the Child Advocate in various legal systems arose. The concept is simple. Children have rights, needs, concerns that are separate from society, from their parents, from institutions charged with their care. The Child Advocate steps in as a check on the power and privilege of others, a check to insure that the needs and perspective of the most vulnerable party to the process are respected and acknowledged. Do the elderly need an Elder Advocate? 

A couple of days after the visit to the Evita Museum that prompted these thoughts, we are in a gorgeous park just around the corner from our apartment. At the heart of the park is a huge rubber tree that spreads shade everywhere. Dozens of  teenagers, adults, young children were present and simply enjoying another gorgeous day. I was reading a new biography of Pope Francis and was in the section where his birth and circumstances in Argentina were being discussed. The author, Austen Ivereigh, takes us through some of the reasoning behind Francis' attention to the migrant and notes that of course Francis is the child of migrants, his grandmother Rosa had emigrated from Italy. Ivereigh writes "Francis was born to an American nation forged from millions of similar deracinations. Nostalgia- from the Greek words nostos and alga, a yearning to return to the place- ran in his veins. When we lose it, he said in 2010, we abandon our elderly: caring for our old people means honouring our past, the place we come from."

I close my book and watch small boys led by a very determined young girl race around the park on scooters, bikes with training wheels, bikes and an odd little means of locomotion that scares me a lot more than the young boy using it. I watch a couple in their late seventies or early eighties return from lunch and I enjoy observing the adults talk and eye their children while simply letting them play. The rights of the elderly are not something pressing but in this our third phase something we attend to from time to time. Life might actually be a circle. All the issues that bedevil us as infants and children return to bedevil us at the last moments of life: the need for respect, attention, decency and an understanding and commitment to the proposition that all human beings have human rights.


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