As surge of dementia cases approaches, Law School aims to safeguard seniors’ rights

An estimated 42 percent of individuals over 55 in the U.S. will ultimately face dementia, and as the American population ages, the yearly influx of new dementia cases is projected to double by 2060. This demographic transition is likely to escalate pressures on already overstretched healthcare systems and caregivers.

It also presents a legal challenge.

At a meeting organized by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School last month, scholars from various fields, including those from other universities, examined how existing laws frequently remove decision-making rights from elderly individuals and what modifications could enable those seniors to maintain greater autonomy as their abilities diminish.

Not all older adults undergo cognitive deterioration, and not every cognitive decline manifests in the same way.

Duke Han, University of Southern California

“Not all older adults undergo cognitive deterioration, and not every cognitive decline manifests in the same way,” remarked Duke Han, a psychology, family medicine, neurology, and gerontology professor at the University of Southern California. For instance, the entorhinal cortex, which connects areas of the brain responsible for utilizing experiences and making value-based decisions, is often one of the first regions impacted in Alzheimer’s disease. Han’s laboratory recently discovered that individuals with thinning in that area are more susceptible to financial scams. This finding may clarify why some individuals perform well in most aspects of life while needing decision-making support for financial matters.

The more physically vulnerable an elderly person is, the higher the likelihood of reporting financial abuse, Han noted. However, relatives and friends can protect against these trends. “Social connectedness is crucial, but it’s not solely about the number of connections a person has,” he stated. “In our most recently published study, we found that it is primarily the depth of social connections that appears to provide protection in this context.”

The legal system has traditionally adopted a binary perspective on decision-making capacity: either one possesses it or does not, with those deemed lacking being classified as incapacitated, incompetent, or insane in certain jurisdictions.

“Existing state laws, which encompass living wills or advance directives, powers of attorney for healthcare, powers of attorney for financial matters, supported decision-making, default surrogate decision-making statutes … these do not accommodate individualized situations very effectively. We refer to them as one-size-fits-all,” explained Leslie Francis, Alfred C. Emery Distinguished Professor of Law and Distinguished Professor of Philosophy at the University of Utah.

Frequently, the legal framework has concentrated on assigning rights and protections to family members or other representatives who make judgments for individuals considered unfit. However, this method can overlook the wishes and values of the elderly individuals themselves, who may still possess the capacity to manage some or all of their affairs.

A 2023 draft legislation from the American Bar Association, the New Uniform Health Care Decisions Act, aims to encourage states to embrace autonomy for individuals experiencing cognitive decline. This legislation includes a model form written in straightforward language that enables individuals to specify not only the types of care they desire or wish to avoid but also to express their goals and values that should inform future healthcare choices, reflecting the deeply personal realities associated with aging.

So far, only two states — Delaware and Utah — have adopted the New Uniform Health Care Decisions Act. However, an international organization may soon provide its own guidelines for safeguarding the rights of older adults. In April 2025, the United Nations Human Rights Council approved a resolution to begin discussions for a new human rights treaty for older persons.

Hezzy Smith, director of advocacy initiatives at the Harvard Law School Project on Disability, noted that the U.N.’s treaty will build upon the agency’s Convention on the Rights of Persons with Disabilities. Smith added that the U.N. committee responsible for monitoring the convention’s enforcement “has made it abundantly clear that individuals with disabilities have faced severe human rights violations as a result of restrictions on legal capacity, and it made it apparent that, from a human rights standpoint for the committee, nations will need to implement comprehensive transformations of their substituted decision-making systems to promote … supported decision-making regimes. They dismissed the idea that there exists a division between those who have legal capacity and those who do not.”

Smith indicated that U.N. member states might adopt a different strategy for elderly individuals, potentially emphasizing positive outcomes over maximizing rights preservation — a difference that could influence how the global community reconciles autonomy with protections for aging populations.

Other Harvard speakers at the conference included I. Glenn Cohen, faculty director of the Petrie-Flom Center, James A. Attwood and Leslie Williams Professor of Law, and deputy dean of HLS; Susannah Baruch, executive director of the Petrie-Flom Center; Michael Ashley Stein, visiting professor at HLS and executive director of the HLS Project on Disability; Francis X. Shen, professor of law at the University of Minnesota and member of the Harvard Medical School Center for Bioethics; Abeer Malik, Petrie-Flom Center student fellow; and Diana Freed, assistant professor of computer and data science at Brown University and a visiting researcher at the Petrie-Flom Center.