American society has created a substantial array of legal rights for, or at least potentially applicable to, older persons. These legal rights, emanating from statutes, regulations, and judicial interpretations of constitutional and common-law principles, fall into two categories. Liberties, or negative rights, consist of an individual's shield against unwanted external intervention or interference. For example, the Age Discrimination in Employment Act's prohibition against employers treating employees or potential employees differently (i.e., less favorably) because of their age constitutes a liberty right or freedom for the employees or potential employees. The Nursing Home Quality Reform Act (part of the Omnibus Budget Reconciliation Act of 1987) and its implementing regulations contain entire sections guaranteeing resident rights (e.g., rights to privacy, religious practice, and communication) against unwanted intrusions by nursing facilities.
Conversely, positive rights or claims entitle an individual to demand some affirmative benefit from someone else. The Social Security, Medicare, and Medicaid acts create such entitlements for designated older persons. So, too, do provisions requiring reasonable accommodations—not merely equal opportunity—from employers or businesses serving disabled persons under the Americans with Disabilities Act.
Over the past two decades, the field of elder law has become recognized as an intellectual subdiscipline and a specialty area of legal practice. The implications of this development are profound for older persons, their professional caregivers, and society. Older individuals now are firmly entrenched as distinct legal-services consumers and beneficiaries of the law, as are agencies that serve the elderly. Laws and practices that target the elderly for particular protections or entitlements are tools that both reflect and help to shape heightened social attitudes toward, and respectful treatment of, the nation's older inhabitants. The application of these laws and practices, however, may also raise many thorny ethical questions. It is to an examination of a sampling of these questions that this chapter now turns.
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