One might argue that older adults are not a distinct group but an arbitrarily delineated demographic category that contains within it a number of group that are legitimately distinct for the purpose of legal theory. Consequently, one is tempted to ask the question: How and why are ‘older adults’ a discrete and distinct group for whom ‘special’ legal thought and treatment is justified?
It is also crucial to question whether it is possible to formulate legitimate generalisations about a group identified as ‘elders’ or older persons while avoiding the harmful stereotypes of ageism. Some literature suggests that there are particular characteristics generally associated with the ageing process in modern Western societies, such as Malta’s, which may be considered within the general heading of vulnerability. Vulnerability in this context can be either Social Vulnerability, due to non-employment and ageist general attitudes, also as a Personal Vulnerability that often increases with ageing. The latter includes both the condition of the individual as well as the context of intimate relationships
There is, however, strong resistance to the idea of vulnerability as an underlying consideration for legislation regarding ageing. This stems from an aversion to ideas such as that age equals weakness or the presumption that age necessarily means the loss of capacity.
There is a well-founded fear that legal thinking focused on vulnerability actually increases social vulnerability, a more significant source of harm, as it enforces ageist presumptions. Legal protection for the truly incapable at whatever age exists and older adults should be treated in law and in other spheres like any other adult person.
Effectively, several dispositions in the Civil Code which in popular perception may be associated only with old age, are in fact age neutral. For example, the dispositions on interdiction and incapacitation in the Civil Code and in the Code of Organisation and Civil Procedures are age-neutral, and similarly, the dispositions regarding adults who are ‘incapable’ of making wills.
Likewise age-neutral are the provisions in the Civil Code and in Code of Organisation and Civil Procedures regarding Guardianship. What is positively important in this legislation is the emphasis on the respect of the rights, will, and preferences of the person insofar as this is possible as well as the clear shift from protection to support. However, how this respect for the autonomy of the person subject to guardianship is ascertained is not exactly clear. Hopefully, two brand new laws proposed in the programme of government concerning Autonomy and Adult Rights will tackle this issue in the near future.
Autonomy is a fundamental value for our notion of legal personhood. Nevertheless, the affirmation of autonomy cannot completely obliterate concerns for the security and well-being of the vulnerable adult. Can the legislator ignore such concerns and view self-neglect and exploitation for example, as choices of the individual and therefore beyond the scope of the legislation?
The crucial issue is whether and how vulnerability can be understood and addressed in legislation concerning older persons without re-enforcing ageist presumptions that further increase social vulnerability.
Photo: Daria Obymaha