Therapeutic Jurisprudence and American Elder Law

Abstract

Throughout the world, modern legislative and regulatory entities have spawned an impressive body of law intended to protect and improve the rights and well-being of older persons and the quality of their lives (Eekelaar and Pearl 1989; Koff and Park 1999). This regulatory corpus takes the form of enactments establishing public benefit programs targeted exclusively or primarily toward the aged, directing the conduct of human service and commercial product providers vis-à-vis older clients, and authorizing governmental or private interventions into older persons’ lives, with or without the specific client’s permission. In the western legislative tradition, laws prohibit discrimination on the basis of a person’s chronological age. Elder law provisions in the United States are predicated upon society’s inherent police and parens patriae powers to, respectively, promote the general health, safety, welfare, and morals of the community and protect from harm those persons who lack sufficient capacity to fend successfully for themselves. Philosophically, some particular examples of American elder law (e.g., regulation prohibiting employers from discriminating against older workers) depend upon the premise that chronological age by itself ought to be considered irrelevant, while other examples embrace the opposite position that older individuals — solely by virtue of their age — require and deserve special governmental preferences. An example of the latter would be the Medicare program, which creates a universal entitlement to federal health care benefits for persons over age 65, an entitlement that the U.S. has not extended to any other segment of the population on the sole basis of age (Rothman 1997, 67–86).