Will you forfeit your rights as you age?

An estimated 42 percent of individuals above 55 years old in America will likely develop dementia, and as the U.S. population ages, the annual incidence of new dementia cases is projected to double by the year 2060. This demographic transition is expected to intensify the strain on already stressed healthcare systems and caregivers.

It also poses a significant challenge for the legal system. 

During a recent conference facilitated by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, scholars from various fields, both from Harvard and other institutions, examined how existing laws frequently remove decision-making power from elderly individuals and discussed ways to enhance the autonomy of seniors as their capacities lessen. 

Not every senior experiences cognitive decline, and not all cognitive decline presents the same way.

Duke Han, University of Southern California

Duke Han, a professor of psychology, family medicine, neurology, and gerontology at the University of Southern California, remarked that not all seniors face cognitive decline, and the nature of that decline varies. For instance, the entorhinal cortex, which connects regions of the brain involved in recalling experiences and making value-based decisions, is frequently among the first areas impacted by Alzheimer’s disease. Researchers in Han’s laboratory discovered that individuals with thinning in this area are more susceptible to financial scams. This finding could clarify why someone may perform competently in many life domains while requiring assistance with financial decisions. 

Older adults who are more physically fragile are more likely to report experiences of financial exploitation, according to Han. However, family and friends can act as safeguards against these trends. “Social connectedness is crucial, but it’s not merely the quantity of relationships someone possesses,” he noted. “In our latest published research, we found that it’s actually the depth of social connections that seems to provide protective benefits in this context.”

The legal system has conventionally adopted a binary viewpoint on decision-making capacity: Either one possesses it or one does not, leading those labeled as lacking capacity to be deemed incapacitated, incompetent, or insane in various states. 

“Existing state laws, which involve living wills, advance directives, healthcare powers of attorney, financial powers of attorney, supported decision-making, and default surrogate decision-making statutes… These provisions often do not align well with unique circumstances. We refer to them as one-size-fits-all,” stated Leslie Francis, Alfred C. Emery Distinguished Professor of Law and Distinguished Professor of Philosophy at the University of Utah. 

Frequently, the law has concentrated on reallocating rights and protections to family members or representatives who make choices for those considered unfit. Such an approach can overlook the preferences and values of the elderly individuals themselves, who may still be capable of managing several or most of their personal matters. 

A recent model legislation from the American Bar Association, the New Uniform Health Care Decisions Act, aims to guide states toward greater autonomy for those experiencing cognitive decline. It includes a model form written in straightforward language, allowing individuals to specify not only the types of care they wish to accept or decline but also to outline the goals and values that they want to inform future healthcare decisions, reflecting the deeply personal aspects of aging. 

As of now, only two states—Delaware and Utah—have embraced the New Uniform Health Care Decisions Act. However, an international organization may soon provide its own recommendations for safeguarding the rights of older adults. In April 2025, the United Nations Human Rights Council endorsed a resolution to initiate negotiations for a new human rights treaty concerning older individuals. 

Hezzy Smith, director of advocacy initiatives at the Harvard Law School Project on Disability, noted that the U.N.’s treaty would expand upon the agency’s Convention on the Rights of Persons with Disabilities. Smith stated that the U.N. committee overseeing the convention’s implementation “has made it abundantly clear that people with disabilities have faced severe human rights violations due to restrictions on legal capacity, and it has emphasized that, from a human rights standpoint, states will need to fundamentally reform their substitute decision-making systems to introduce… supported decision-making frameworks. They dismissed the idea of a divide between those with legal capacity and those without.”

Smith asserted that U.N. member states may consider a different strategy for seniors, possibly prioritizing positive outcomes over the maximization of rights preservation—a differentiation that could influence how the global community navigates the balance between autonomy and protections for the aging populace. 

Other speakers from Harvard 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.