The Age of 'Ageism'

By Aryeh Dayan, Haaretz.com

Israel

August 27, 2007

An 83-year-old woman from central Israel was hospitalized a few years ago in the internal medicine ward of a government hospital. Until that time the woman, twice widowed and childless, had lived alone in her own apartment. 

The medical tests she underwent revealed that she had stomach cancer. She was sent home, where she was to continue treatment with pain-killing medication. However, when her doctors realized she lived alone, they changed their mind and ordered her to be hospitalized in the chronic-care ward. The woman demanded to be allowed to return home, and explained that a close friend, who had visited her every day during her hospital stay, would care for her. The physicians did not agree; the patient persisted in her refusal to be hospitalized in the chronic-care ward. Then, without the woman's knowledge, the hospital administrators turned to the courts and through the office of the attorney general, asked that a legal guardian be appointed for her. 

The Family Court based its ruling in this case on brief opinions submitted by a social worker and the doctor in the internal medicine department. Without informing the woman of the legal proceedings, and thus without hearing her views or assessing her condition first-hand, the court decided to appoint a public body to be legal guardian of her person and property. The new guardian immediately agreed that the woman be transferred to the chronic-care ward.

A few days later, the woman realized that the guardian intended to rent out her apartment to finance her hospitalization. At her request, her friend appealed the guardianship ruling. The hearing on the appeal was delayed because of the state's argument that the friend was not a relative and had no standing in the case. Meanwhile, the woman sank into depression and died before the hearing on her appeal was finished. 

This Kafkaesque story appears at the beginning of a new book, "Law, Justice and Old Age" (published in Hebrew by Eshel), by Dr. Israel Doron. The book deals with the problematic attitude of the Israeli legal system toward the elderly. Its central claim is that the system's attitude is suffused with a "mixture of paternalism, exclusion and silencing." Such an approach, the book states, turns this group into one of society's most disadvantaged populations, and places them in the same category as other, weaker sectors, among them women, children, Arabs and people with disabilities. 

When Doron writes about the legal system, he means court verdicts as well as Knesset legislation. He argues that as opposed to other weaker groups, the main problem when it comes to the elderly is that there is no one to protect them. The public discourse on rights that developed in the country in the 1990s bypassed the elderly. "The Knesset did not relate to them as a significant political force," Doron explains, "at least not until the wins of the Pensioners Party in the last elections. And a High Court of Justice ruling has still not recognized them as a special group with special interests." 

Doron began to deal with the issue of the elderly in 1993, as part of his M.A. studies in civil rights in Boston when, as a young attorney, he interned in the legal department of an American senior citizens' organization. His doctorate dealt with legal guardianship of the elderly from an international perspective; since 2000 he has lectured on and studied the relationship between the law and the elderly in the University of Haifa's health and welfare sciences department. 

In 2002, Doron established the Association of Law in the Service of the Elderly, with the goal of promoting the rights and the standing of senior citizens using legal tools, such as High Court petitions, legal counseling, and by influencing legislation. So far, the association's achievements have been rather modest. At this stage, "the elderly continue to be the only weak group that has not managed to develop focuses of power that will generate societal change by using legal tools," Doron told Haaretz. 

Doron believes that the negative attitude toward the elderly stems from "ageism" - the act of relating to people only from the perspective of their chronological age, labeling them negatively and attributing characteristics to them that have no connection to their real qualities. Ageism, Doron adds, is like racism and sexism, and in recent years has grown and become stronger. At the same time, Israeli society is growing older. According to statistics in Doron's book, taken from the Association for the Planning and Development of Services for the Aged in Israel, in 1955, citizens aged 65 or older comprised five percent of Israel's population. Today, they comprise 10 percent. By 2025, it is estimated that their portion in the population will rise to 14 percent. 

"An aging population is not a solely Israeli phenomenon," Doron says. "The situation in Israel is actually less acute than in Europe, because the high birth rates of the Arabs and the ultra-Orthodox balance it out a little," he adds. But this phenomenon still has a uniquely Israeli aspect. "The Zionist ethos, which aspires to build the new Jew, was very much connected to young people. The farmer and the fighter were images of youth. Old age was not part of the Zionist picture of the world, because it was associated with the Diaspora, which Zionism wanted to substitute with the new Jew." 

Doron argues that many court rulings and expert opinions provided by doctors and social workers are tainted with ageism, and create "a clear malfunction of logic" in the justice system. This system, Doron writes, assumes that if expert documents - provided by doctors and social workers - state that an individual is unable to express his or her opinion regarding the appointment of a guardian, there is no need to invite that person to the hearing. 

"But if the person is not invited," he writes, "how can that claim be refuted in self-defense? How can the court verify what the medical documents say, or objectively and neutrally put them to a test before depriving the individual of his or her basic rights?" 

According to the author, studies in various countries, including Israel, have shown that doctors sign off on expert opinions without conducting a thorough examination of the aged person. As a result of this finding, some U.S. states have begun changing their laws. In some states, Doron notes, judges are prohibited from appointing a guardian before they have seen the elderly person in question. In others, "it is prohibited to appoint a guardian for an elderly person who is not represented by counsel. In Israel, on the other hand, the courts make do with a medical certificate presented by the children of the elderly person." 

The rights of seniors are infringed upon not only when it comes to the appointment of a guardian. One chapter in Doron's book is devoted to a detailed analysis of supervisory regulations concerning the residents of old-age homes. These regulations were approved in 2001 at the initiative of the Social Affairs Ministry. Doron writes that the rights mentioned - which include, among others, the right to receive mail, the right to visits and the right to a telephone - "are somewhat reminiscent of the list of the rights of prisoners." 

Even the occasional proposal to correct the situation is tainted with paternalism, Doron believes. In recent years awareness has increased of cases in which those who have received power of attorney over a wealthy elderly relative's bank accounts take advantage of them economically. "As the law stands today," he explains, "a bank manager is not required to take any action, even if he or she notices that large amounts of money, tens or hundreds of thousands of shekels, are being withdrawn day after day from a senior's account." 

One proposal now on the table to deal with this problem, Doron notes, is to oblige the bank manager to report such cases to the police or the welfare authorities. He does not understand why the bank manager should first of all run to the authorities. Why not report to the elderly person first, he asks, adding, "Why continue to reinforce the image of the elderly person as helpless?" 

The situation of infirm elderly will improve, Doron believes, only if they establish organizations and institutions that will allow them to flex their political muscles and influence decision-makers and the legal system. The seven Pensioners Party MKs, he says, "who should have been fulfilling this function," have already managed to disappoint him. "Instead of initiating structural and perceptual changes, they are making do, if at all, with pinpoint actions." 

Thus salvation will come only by establishing an organization to protect the rights of the elderly, which will work to marshal their political power to impact decision-makers in government ministries and the Knesset, and court rulings, as do the Association of Civil Rights in Israel, the Israel Women's Network or the National Council for the Child. 

"My dream is to turn the Association for Law in the Service of the Elderly into the 'Adalah' of the elderly," Doron says, referring to an advocacy organization for Arab minority rights in Israel.

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