Longevity is transforming society and posing new challenges for the law. Joana Silva Aroso, coordinator of the Postgraduate Programme in the Law of Older People at the Faculty of Law – Porto School of the Portuguese Catholic University, advocates an approach that goes beyond protection and vulnerability, emphasising the autonomy, dignity and participation of older people. In this interview, she discusses the main legal challenges associated with ageing and explains the importance of interdisciplinary training in this field.
1. The rights of older people remain a largely unexplored area in Portugal. Do you feel, however, that it is gaining in importance? Why do you think this area is so important today?
I believe it is above all the interest in the topic of ‘the rights of older people’ that is gaining prominence, because we have begun to realise that longevity is not merely a demographic, health or social security issue, but rather a structural transformation of society.
Living longer is a huge achievement for civilisation, but we will continue to regard it as a problem if the law, institutions, cities, the labour market and care models are not prepared for longer lives.
For a long time, the law viewed older people primarily through the prism of vulnerability, dependency or disability. These issues remain essential, but they are only part of the picture. A legal examination of longevity compels us to address autonomy, participation, work, housing, technology, assets, consumption and, across the board, the fight against ageism.
2. Average life expectancy is rising and we are living longer than ever before. What legal and social challenges arise from this reality?
The challenges span virtually all areas of society and the law.
If we are living longer, we need to rethink how we work, when and how we retire, how we save, where we live, how we organise care, and how we ensure that people retain the ability to make decisions about their own lives.
This raises very specific issues: the sustainability of pensions, long-term care, protection for carers, housing, health, estate planning, age discrimination and access to goods and services.
But it also, and above all, presents a cultural and educational challenge: to move away from a rigid view of the stages of life and age-related prejudices that associate ageing with vulnerability. Older people do not constitute a homogeneous group. The law must therefore manage, at the same time, to protect genuine situations of vulnerability whilst preserving the autonomy of those who remain fully capable of making decisions.
3. In your work as coordinator of the JPAB’s Longevity+ Desk, what are the legal challenges relating to ageing that arise most frequently?
What we see most often is precisely the cross-cutting nature of these issues.
There is no single legal problem associated with old age, but rather a multitude of issues relating to the preservation of autonomy and capacity, the legal framework for supported living, institutionalisation, estate and inheritance planning, housing, family relationships, carers, violence and financial abuse.
However, there is also a growing focus on matters relating to life plans in later life, whether within or outside the labour market; companies’ concerns about legally accommodating the challenges of multigenerational teams; and the new business areas driven by the longevity economy: new forms of housing, technology, and the development of products and services.
That is why I like to say that we should not merely prepare for old age, but rather plan for our longevity.
4. One of the subjects you teach deals with ‘The rights of older people in the light of the Constitution of the Portuguese Republic’. After all, can we speak of ageing with dignity as a genuine fundamental right?
We can, although it is important from a legal perspective to clarify the concept.
The Portuguese Constitution contains a provision expressly dedicated to older people. Article 72 recognises rights relating to economic security, housing, family and community life, personal autonomy and active participation in the community.
However, this provision must be read in conjunction with fundamental constitutional principles such as human dignity, equality and the right to personal development, which implies freedom and autonomy.
Dignity does not diminish with age, and one’s capacity does not automatically disappear when a person reaches a certain age.
There is even a risk of well-meaning paternalism: protecting a person so much that we end up taking away their ability to choose. The real challenge is to strike a balance between protection and self-determination.
Ageing with dignity means, first and foremost, continuing to be in control of one’s own life.
5. Institutionalisation remains a sensitive issue for many families. What rights must always be safeguarded when a person enters a residential care setting?
There is a very simple idea that must always be borne in mind: a person does not lose their fundamental rights when they enter an institution.
They retain the right to dignity, privacy, intimacy, information, family and social relationships, and a say in decisions concerning their life, even though life in a community setting necessarily involves adjustments and limitations.
Institutionalisation must not mean infantilisation either, and whilst the family can play a vital role, it does not automatically override the resident’s wishes.
As long as a person has the capacity to make decisions, their wishes must be heard and respected, and in this regard we see a great need for training and information for service users, family members and care homes.
6. How can we ensure that institutional care effectively respects the dignity, autonomy and wishes of older people?
It starts with listening to the person themselves. Their wishes must be taken into account from the moment they decide to enter the care home and must continue to be reflected in day-to-day choices, care, routines, relationships and the organisation of their life.
The individual care plan should not merely be an administrative tool; it must reflect the resident’s active involvement and adapt to changes in their needs and abilities.
There is also an organisational challenge. An institution naturally requires rules and routines, but the efficiency or convenience of services cannot justify unnecessary restrictions on individual freedom.
A good institution is not just one that provides good care; it is one where the person feels at home.
7. Why do you consider it important, today, to have a postgraduate programme exclusively dedicated to the law relating to older people? What gap does this programme aim to fill?
Firstly, in my view, because issues relating to ageing have traditionally always been addressed within the context of health and social security systems.
Secondly, because, when examined from a legal perspective, ageing and longevity have been approached in a fragmented manner and, I believe, always from the viewpoint of protection and care, rather than empowerment and appreciation.
This postgraduate programme is not intended to be merely a course in elder law focused on resolving legal problems associated with old age. It aims to study, understand and provide a legal framework for ageing and longevity across various dimensions.
For this reason, the programme brings together fundamental rights, ageism, autonomy, health, institutionalisation and violence with topics such as housing, cities, work, taxation, pensions, the economics of longevity and leadership.
The aim is to create an integrated view of longevity, without losing sight of the fact that ageing well is, above all, a matter of law(s).
8. The course brings together specialists from very different fields, such as Law, Medicine, Gerontology and Social Sciences. Why is it essential for the study of ageing to draw on different areas of knowledge?
This is, it seems to me, one of the course’s greatest strengths, because ageing is not a legal category; it is a biological, psychological, social, economic and family-related process upon which the law acts.
A lawyer dealing with an issue of autonomy concerning a person with cognitive impairment needs to have at least a basic understanding of that clinical reality. Similarly, a healthcare professional faced with a consent issue needs to be aware of the legal limits on intervention by family members or third parties.
No single discipline can, on its own, address the challenges of longevity. Interdisciplinarity enables us, in this as in other fields, to better understand reality and, above all, to develop more appropriate responses.
The law must engage with the reality it seeks to address, and it is this exercise in listening that we also propose.
9. What knowledge and practical skills will participants be able to develop during the postgraduate programme, and how can they apply these in their professional practice?
We want participants to acquire tools that will enable them to recognise and resolve specific problems relating to the preservation of autonomy and capacity, informed consent in healthcare, the legal framework for adults under guardianship, problems and issues arising in the context of institutionalisation, violence or financial abuse, age discrimination, as well as matters concerning assets, employment, taxation and social protection.
And there is a cross-cutting skill that I consider equally important, perhaps the most important: learning to view age without prejudice.
Ageism can influence legal, medical, family or business decisions without us realising it.
Training in this area therefore also means learning to distinguish between actual vulnerability and presumed vulnerability, based solely on age.
10. Looking ahead to the coming years, how do you think the law relating to older people will evolve in Portugal? What opportunities might arise for professionals who specialise in this area?
I believe we will gradually see a shift from a legal framework heavily focused on protection in old age towards a broader approach: a genuine ‘Law of Longevity’.
We will need to consider, from a legal perspective, new forms of housing and care, longer and more flexible working lives, new models of retirement, financial products and insurance, artificial intelligence and technology applied to care, accessibility in cities, consumer protection and new forms of economic and social participation.
And this opens up a highly significant professional field, not only for lawyers, but also for healthcare professionals, managers, architects, psychologists, gerontologists, local authorities, businesses, banks, insurance companies and public decision-makers.
The economics of longevity is precisely one aspect of this change. A population that lives longer represents not only new needs, but above all knowledge, economic capacity, new markets, innovation and new forms of participation.
Ultimately, this is perhaps the most important idea: longevity is not an issue ‘for other people’ nor a problem confined to the end of life.
If we are fortunate enough to live for many years, we will all be confronted with these issues.
Therefore, rather than simply creating a legal framework for or by older people, we need to prepare the legal system and society for lives that are not only longer, but also fuller and richer in dignity, autonomy, health and purpose.
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