All About Estates

So What Is Elder Law Anyway?

Today’s blog is written by David Freedman, Associate Professor of Law at Queen’s University

As has been mentioned in a previous blog of December 17, 2010 written by Angelique Moss, I teach wills & estates law and trusts law in the Faculty of Law at Queen’s University. Over the past few years, I’ve become interested in the emerging area of ‘elder law’. I think it’s an important area given changing demographics. It’s starting to appear on the curricula of a number of Canadian law schools (here at Queen’s Law we offer both an elder law course and a new clinical program in elder law) and an increasing number of lawyers now market themselves as ‘elder law’ practitioners – and yet the progress of elder law in Canada remains slow in face of a certain amount of healthy scepticism. Is elder law a ‘real’ area of law or just a new way to market legal services to older adults and their families?

The Law Commission of Ontario, the Advocacy Centre for the Elderly, and the Canadian Centre for Elder Law recently sponsored an international conference on elder law and there were many interesting papers that were presented (which are available online). I have my own view about what lies at the core of elder law that I presented at the conference: human dignity. Dignity is of course an elusive legal value despite its prominent place in human rights law. The Charter certainly protects dignity as a legal value but does so indirectly through many individual rights and freedoms, principally the section 15 equality protection. The problem when ‘dignity’ is raised in any given context is how to define it and apply it meaningfully in that context.

To my mind there are two components of human dignity that are relevant for elder law – objectively-focussed ‘respect’ and subjectively-focussed ‘autonomy’. Dignity as respect speaks to the intrinsic worth of a person as a person, or, perhaps slightly differently, protection against degradation of one’s personhood, one’s value as a person – the limited range of appropriate care facilities and supports available to indigent incapable adults instantly comes to mind as a dignity problem. Dignity as autonomy speaks to the ability of a person to control his or her own identity and is about self-worth; the fight against unjustified age-based discrimination is intrinsically about autonomy and self-worth. With more older adults faced with working later in life than what was expected means that protection against ageism in employment will be particularly important in the future (expect Human Rights Tribunal jurisprudence to emerge on this point).

For those with an interest in this emerging area of law, I would suggest that we should approach the many serious legal problems affecting older adults as being connected to the protection and promotion of human dignity. My hope is that seen in this way, ‘elder law’ will not only capture the imagination of the legal profession but will also construct a conventional conceptual framework in which to articulate legal principles that will allow elder law to be accepted and develop as any other ‘real’ area of law and legal practice.

David Freedman

About Justin de Vries
Justin has been consistently named as one of the Best Lawyers in Canada/Trusts & Estates. He is an accomplished litigator who has appeared before all levels of the Ontario Court & the Federal Court of Canada. Justin's areas of expertise include: estate, trust, and capacity litigation, as well as probate applications and estate administration. He regularly speaks on estate, trust and capacity issues. Email: