‘I May Be Older, But I Ain’t No ‘Elder’: A Critique of ‘Elder Law’

Abstract

The provision of legal services for people in later life is an emerging area of legal specialism in the United States, Canada, and the United Kingdom. In the United States, "Elder Law" legal practice is a "growth industry," with an increasing number of practitioners specialising in this area alone. For instance, the Canadian Bar Association now has a National Elder Law Section, which addresses the legal issues and problems of "the elderly." In the United Kingdom, "Elderly Client Law" is a similarly expanding field, with a national organisation, Solicitors for the Elderly, providing a forum for legal practitioners specialising in this area. The argument for the need for such specialist areas, both in terms of practice and academic inquiry, is that "elders" or "the elderly" have specific previously unmet legal needs associated with their age and are more affected by particular laws also because of their age, and that there are unique issues raised for lawyers in working with clients in later life. Drawing on feminist and gerontological critiques of status/identity-based approaches to equality, I develop the argument that the concepts of "Elder" and "Elderly Client" specialist legal practice, rather than empowering and enhancing the legal rights of older people, instead reinforce the stereotyping of people based on chronological age in general, and older people in particular, both in law and wider society. I propose that the terms "Elder" and "Elderly" are misleading, over-generalising terms linked to physical and cognitive frailty, dependency, and the medicalisation of older age, masking great diversity in functional ability among older people. These terms convey a false suggestion of homogeneity among older people whose identities actually cut across the social spectrum and vary widely according to not only those identities and their intersection, but also chronological age, cohort, and life course events.