Elder Law in the Time of COVID-19

What Is Elder Law?

Elder law is about how the law affects older persons. It engages our thinking about the law in multiple ways and fields. Elder law is part of criminal law, human rights law, family law, pension law, landlord and tenant law, employment law, penal law and estates and trusts law, to name some examples. 

A law may be deliberately intended to apply based upon age. For example, a person must be at least 65 years old to be eligible to receive old age security. Another angle involves laws that are not specifically age-based, but mainly affect older persons. A good example is the law and regulations that govern long term care homes. Most residents of these homes are older. 

And then there are the laws of general application, which may not affect everyone the same way. As the Law Commission of Ontario noted in a 2012 report: “Some laws, while affecting individuals across a range of ages, affect a substantial portion of older adults”, and “it is also important to consider laws of general application which do not affect more older adults as a group, but may impact on older adults differently from other groups.”

This Pandemic Brings the Purpose of Elder Law into Sharp Relief

In an op/ed article in The Globe and Mail on March 28, 2020, Dr. Nathan Stall and Dr. Samir Sinha, both geriatricians, wrote about ageism in Canadian society, and said:

"A pandemic gives us a wide lens into the state of our society. So far, our response has not been pretty. When this pandemic ends and humanity survives, how will older adults view the rest of us? Will we be remembered for our callous disregard and self-interest? Or will we be recognized for supporting all Canadians through initiatives such as special hours for older and immune-compromised shoppers, or on-line groups of volunteers promoting acts of “caremongering?”

To which I add, how will we view ourselves? 

On four occasions I have seen a presentation by the Correctional Investigator on Aging and Dying in Prison, based on reports made by the current investigator, Dr. Ivan Zinger, and his predecessor, Howard Sapers. Penal law is a great example of an area of law that is of general application that affects older persons differently from other groups.

Briefly, prisons are not hospitals or long term care, and aging prisoners lack access to necessary care and supports in prison, including end of life care, as well as opportunities to be humanely released to be cared for in the community.  Each time I’ve seen Dr. Zinger or Mr. Sapers present, I have thought that how we treat older prisoners in Canada is a test of our humanity, one which we are failing.

Many older persons in Canada are now, for the time being, captive to the circumstances created by the spread of COVID-19.  They’re isolated from their loved ones and caregivers, and trying to live their lives safely while subject to the carelessness and whims of fellow citizens who don’t take the excellent advice of our country’s medical, scientific and political leaders seriously. They are also affected by the sudden steep downturn in the economy, the lack of availability of products and services, and the scary messages about what is going to happen to our health care system if we don’t flatten the curve, or even if we do.

Are we up to this test of our humanity?

What We As Lawyers Can Do

We’ve been hearing over and over that COVID-19 will have a disproportionate medical effect on older persons. In Ontario, where I practice, lawyers are still considered by our provincial government as an essential service.  If it is our job to continue to practice law, we need to apply an elder law lens in every area, and consider the potentially different and harmful ways in which older persons may be affected by the legal advice we give our clients about their business interests and personal matters.  

Most of us lawyers cannot build ventilators or conjure up more PPE equipment for our local hospital, wish as we might that we could. But we can be a vanguard against ageism and the harm it could cause to older persons during this crisis.  We can all practice elder law.