Elder Law

Elder Law

Introduction to Elder Law

In the Preface to his book “Older People in Law and Society,” Jonathan Herring of Exeter College
Oxford, says:

“It is remarkable how little has been written on the English law and older people. While
elder law is a well-established field of study in the United States, I do not know of any
English law degree which offers it as an option Â… One of the themes of this book is that
the issues raised show how ageist assumptions underpin much of the law. The problems
of “older people” are often the problems with legal notions, rather than particular
problems with old age. In other words, the study of elder law has as much to teach us
about the law generally as it does about the law and old age in particular.”

In the conclusion of the Jonathan HerringÂ’s book, the author quotes Shakespeare
on old age as “second childishness and mere oblivion, Sans teeth, sans eyes, sans taste, sans
everything” (“As You Like It”). Later, in the book, Jonathan Herring adds “Wonderful poetry, but not good ethics. Whatever physical frailties or mental disturbance a person may suffer, they are not without their basic rights to be treated as a human being with dignity and respect”.

In fact, some areas of the law are quintessentially about older people, eg
pensions, retirement villages, planning for retirement, etc. And other areas of the law are
put into very sharp relief when looked at from an older personÂ’s perspective, eg inheritance,
capacity and so forth. “Elder abuse”, as it is now known, is about exploitation that could happen
to anyone who is in a dependent situation. However, it is now perceived to be a special problem
relating to older people – who may be abused by family members, carers, anyone who sees them as “easy pickings”. By giving it the label “elder abuse”, we can less easily dismiss it as
something not to be too worried about and we can focus on the particular circumstances in
which this kind of abuse occurs.

In a broader sense, the issues facing older people are ones that need to be central to the
development of social policy and therefore legal policy.

Besides, in a broader sense, lawyers and other legal professionals have to be aware of
social conditions and who their “clients” are.

Contents of Elder law

This section provides an overview of some of the Elder law topics:

  • Public institutions, eg role of such institutiones in areas like age discrimination, “ageism”; human rights and related discriminations.
  • Elder abuse (within families, in institutional care) in relation to civil and criminal law
  • Legal Capacity
  • Older people and contracts
  • Retirement villages – statute, case law, Code of Practice
  • Rest home care – regulation, complaints, funding, subsidies, asset testing, equal pay in rest homes)
  • Adult guardianship and property management; mental health laws; payment of
    welfare guardians
  • Enduring powers of attorney
  • Medical treatment – advanced directives, end-of-life issues more generally, rationing, health insurance
  • Grandparenthood – role in care issues more generally
  • Financing of old age; trusts and estate planning
  • Employment of older citizens, voluntary work, etc
  • Sexuality and older people
  • Disability and older people
  • Older migrants and refugees
  • Superannuation – income-testing, funds, private schemes, eligibility, especially overseas, payments after death
  • Succession – wills, testamentary capacity and undue influence, challenging wills,
    validating irregular wills, family protection and testamentary promises claims; legal


Elder Law

This entry provides an overview of the legal framework of elder law, with a description of the most significant features of elder law at international level.

Related Work and Conclusions


See Also

References (Papers)

  • 2016-2017 Georgia State University Law Review Symposium: Exploring The Right To Die In The U.S., Margaret Pabst Battin, Jul 2017
  • End Of Life Care For The Incarcerated, Codie Robinson, May 2017
  • On Hastening Death Without Violating Legal Or Moral Prohibitions, Norman L. Cantor, Apr 2017
  • Zoning For The Elderly And Family Rights, Ralph J. Libsohn, Apr 2017
  • Video: Elder Law For Beginners, Arlene Lakin, Gail Fisher, Mar 2017
  • Aging America, Thomas L. Shaffer, Nov 2016


See Also

  • Legal Biography
  • Legal Traditions
  • Historical Laws
  • History of Law

Further Reading

    • Elder law in the Oxford International Encyclopedia of Legal History (Oxford University Press)
    • Ashton, G Elderly People and the Law (Butterworths, London 1995)
    • Connor, P and Hall, A Elder Law (NZLS, Wellington, 2003)
    • Diesfeld K and McIntosh I (eds) Elder Law in New Zealand (Thomson Reuters, Wellington, 2014)
    • Doron, I (ed) Theories on Law and Ageing: The Jurisprudence of Elder Law (Springer-Verlag Berlin Heidelberg, Berlin, Heidelberg, 2008)
    • Eekelaar, J and Pearl, D (eds) An Aging World Dilemmas and Challenges for Law and Social Policy (Clarendon Press, Oxford, 1989)
    • Fredman F and Spencer, S (eds) Age as an Equality Issue Legal and Policy Perspectives (Hart, Oxford, 2003)
    • Frolik LA “”The Developing Field of Elder Law: A Historical Perspective” (1993)
    • 1 Elder LJ 1 and “The Developing Field of Elder Law Redux: Ten Years After” (2002)
    • Greengross, Sally (ed) The Law and Vulnerable Elderly People (1986, Age Concern England, Mitcham)
    • Herring J Older People in Law and Society (Oxford University Press, Oxford, 2009)
    • McDonald, A and Taylor, The Law and Elderly People M (Sweet and Maxwells, London, 1995)
    • Elder law in the Dictionary of Concepts in History, by Harry Ritter