INTRODUCTION

Europe is getting older. Due to increased life expectancy but also to a decreased birth rate, the proportion of seniors in the overall population is constantly rising. Seniors may no longer be seen as forming a homogeneous group. Distinctions have been proposed between the “young old”, the “old”, and the “oldest old” or between persons of the third and of the fourth age. The definitions of the people who fall within these groups may vary. In any case, there is little doubt that the seniors belonging in the last of these categories, meaning the “oldest old” or the “fourth age”, constitute the fastest growing segment of the population. This increase is coupled with a rise in the number of people with declining health, be it their physical, psychological and/or mental state.

Under these conditions, elder law is evolving as a new area of law. Apart from issues regarding inheritance, legal ability to enter contracts and legal representation in cases of incapability, health insurance and pension schemes, which have been discussed at length in the traditional legal literature, elder law also pertains to questions of everyday care of older people. This last issue gains more relevance, the less the family are able to assume elder care responsibilities, as is nowadays the case. Due to increased life expectancy, the children of older seniors are often seniors themselves. Moreover, because of the decreased birth rate, the responsibility of caring for older relatives rests upon the shoulders of fewer family members, while an increase in female employment has led to a further reduction of care resources within the family. Finally, given the increased mobility of persons within a country, or even internationally, children often no longer live in the vicinity of their parents.

For many decades, the common response to the inability of an older person to live independently was his admission to a care or nursing home. Thus, the provision of care and services came together with a significant compromise of his autonomy. This unsatisfactory trade-off of independence for care, on the one hand, and the realisation that the scarce supply of places in nursing homes could not cope with the expected increase in demand in the near future, on the other hand, made evident the need to seek other creative and cost-efficient solutions.