DESK REVIEWS | 04.05.04.02. Does the legal system place the responsibility of older parents directly on their offspring (either in the law or specifically in various policies)?
DESK REVIEW | 04.05.04.02. Does the legal system place the responsibility of older parents directly on their offspring (either in the law or specifically in various policies)?
Yes. The Brazilian Federal Constitution (1988) in article number 229 states that off-spring must support their older parents. Moreover, the Older People’s Statute and the National Healthcare Policy for Older People advocates that older people have the right to be supported by their family members (or at least by the society). Yet in Brazil, it is commonly expected by society that older people receive support from their children (Presidency of Republic of Brazil, 1988).
Presidency of Republic of Brazil. (1988). Federal Constitution of Brazil. http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm
The Maintenance and Welfare of Parents and Senior Citizens Act (2007) places the responsibility on children or relatives to take care of the elderly and highlights that neglect or abandonment of elderly people is a punishable offence by law (Ministry of Law and Justice, 2007).
Ministry of Law and Justice. (2007). Maintenance and welfare of parents and senior citizens Act. Government of India.
Yes, Law no. 1/1974 (article 46) on marriage, states that an adult child is obliged to care for his/her parents and other family members in the vertical family line within his/her capacities if they need his/her help (UU No. 1/1974 Tentang Perkawinan (Law No. 1/1974 on Marriage), 1974).
UU No. 1/1974 tentang Perkawinan (Law No. 1/1974 on Marriage). (1974). (Testimony of Republik Indonesia).
The care and protection of older members of society bill, 2018; PART III section 11 (1) states that “Home based care programmes established by a Home based care county government under section 10(2) (b) shall be implemented with respect to older members of society who (part d) are isolated and have no family member or care giver who can care for them” (Republic of Kenya, 2018b), page 342. This is an indication that before placement in a home-based care programme, the option on whether the person has a family member or caregiver is taken into consideration. In some cases, placement is made if the family member is not in a position to be a direct caregiver or has other responsibilities. Family carers often perform these duties due to cultural or spiritual reasons such as “fulfilment of a duty as a child”, “to return the favour of being a child” and” associated with a blessing i.e. to receive parental blessing.” PART III 59(f) also states Pursuant to Article 57 of the Constitution, every older member of society has the right to receive reasonable care, assistance, and protection from their family and the State (Government of Kenya, 2010), page 38.
Government of Kenya. (2010). The Kenya Constitution, 2010. Kenya Law Reports. http://www.kenyalaw.org/lex/actview.xql?actid=Const2010
Republic of Kenya. (2018b). The Care and Protection of Older Members of Society Bill, 2018. Kenya Gazette Supplement No. 73 (Senate Bills No. 17), pp. 333–363. Nairobi, Kenya. http://www.parliament.go.ke/sites/default/files/2018-08/The%20Care%20and%20Protection%20of%20Older%20Members%20of%20Society%20Bill%2C%202018.pdf
Article 9 of the Law on the Rights of Older Persons (DOF – Diario Oficial de la Federación, 2018) states that the family of the older adult must fulfil its social function; therefore, it must look after each. Each family is responsible for providing the necessary satisfiers for their care and integral development, and has the following obligations to them:
- Granting food,
- Encourage daily family life, where the elderly person actively participates, and promote at the same time the values that affect their emotional needs, protection and support,
- Prevent any of its members from committing any act of discrimination, abuse, exploitation, isolation, violence, and legal acts that endanger their person, property, and rights.
DOF – Diario Oficial de la Federación. (2018). Ley de los Derechos de las personas adultas mayores.
Education Policy Outlook – OECD. (n.d.). Retrieved February 20, 2019, from http://www.oecd.org/education/policy-outlook/
Policies in South Africa are situated within a familial framework that promotes a philosophy of ‘active aging’ that aims to keep older persons within the family and community setting for as long as possible. Although this philosophy to support their participation in their communities for as long as possible is commendable, it promotes a shadow discourse that locates the responsibility for care of older persons predominantly within the family, which often translates to women shouldering the burden of care at the expense of their participation in the labour market. For example, the White Paper for Social Welfare (1997) as well as the Older Persons Act no.13, 2006 (Government Gazette, 2006) draw on principles of ubuntu, framing the care of the aged as predominantly a social and moral practice that is situated within the private space of the family. Ubuntu refers to the social nature of people and defines people as people through their relations with others, and positioned within policy, it largely privatises care for the aged within the family (Sevenhuijsen et al., 2003) and, thus, influences the way in which health challenges faced by older persons are perceived and responded to, within South Africa. It also influences perceptions about how the burden of care within the family is distributed and socially sanctioned as being primarily the responsibility of a female family member. Currently in South Africa, the typical profile of caregivers to persons living with dementia is a middle aged, or older female, child or spouse (Gurayah, 2015; Khonje et al., 2015; Marais et al., 2006), positioning women as responsible for “large-scale social and political problems” (Sevenhuijsen et al., 2003, p.311).
Government Gazette. (2006). Older Persons Act, No.13 of 2006 (Vol. 13, Issue 1098). Available from: https://www.westerncape.gov.za/other/2012/3/older_persons_act.pdf
Gurayah, T. (2015). Caregiving for people with dementia in a rural context in South Africa. South African Family Practice, 57(3), 194–197. https://doi.org/10.1080/20786190.2014.976946
Khonje, V., Milligan, C., Yako, Y., Mabelane, M., Borochowitz, K. E., & Jager, C. A. De. (2015). Knowledge , Attitudes and Beliefs about Dementia in an Urban Xhosa-Speaking Community in South Africa. Advances in Alzheimer’s Disease, 4, 21–36. https://doi.org/10.4236/aad.2015.42004
Marais, S., Conradie, G., & Kritzinger, A. (2006). Risk factors for elder abuse and neglect: brief descriptions of different scenarios in South Africa. International Journal of Older People Nursing, 1(3), 186–189. https://doi.org/10.1111/j.1748-3743.2006.00025.x
Sevenhuijsen, S., Bozalek, V., Gouws, A. and Minnaar-Mcdonald, M. (2003). South African social welfare policy: An analysis using the ethic of care. Critical Social Policy, 23(3), 299–321. https://doi.org/10.1177/02610183030233001