We assist today to an increase of the ageing population (in France and in Quebec, ? of the population will have more than 60 years in 2050) along with a risk of vulnerabilisation of elderly people. To cope with this demographic challenge, States have set up legal mechanisms of protection as well as socio-medical services. These mechanisms and services rest on social rights that need to be activated. The access to these rights is rendered difficult when the cognitive vulnerability of the elders weakens their capacity to exercise their rights and to put forward their interests. This creates a series of situations in which the respect of their fundamental rights is endangered, in spite of or because of the recourse to these legal mechanisms of protection. The increase in the recourse to these mechanisms poses various types of problems, the more so as their legal foundation is disputed today. The need assessment for protection rests on dubious criteria; the control of the decisions taken and of the actions conducted for the person by others remains scarce; the respect of the preferences of the person is difficult to realize. This poses the problem of the access to their rights by the persons with cognitive vulnerability. Project ACSEDROITS will assess whether the current legal tools and their social uses in France and in Quebec make it possible to solve or on the contrary contribute to worsen the difficulties of access to their rights by the elders with cognitive vulnerability. It will be articulated around two hypothesis: 1) the difficulties of access to the rights are reinforced by the lack of communication between social and civil rights, at the legal level (legislation, case law and doctrine), and at the level of social uses and legal conscientiousness that persons have of their rights; 2) a better respect of the rights of the vulnerable elders implies a new delimitation of the concept of legal capacity leaning towards a procedural comprehension of the decision-making processes leading to the opening of the protection regimes, the limitation of fundamental rights and the legal imposition of care and services. To test these hypothesis, the project will be based on an interdisciplinary scientific program implying an ethnographic approach of the difficulties met by the actors, a theoretical analysis of the anthropo-legal concept of capacity, and an analysis of comparative law.
Monsieur Benoit Eyraud (Centre Max Weber)
The author of this summary is the project coordinator, who is responsible for the content of this summary. The ANR declines any responsibility as for its contents.
CMW Centre Max Weber
UQAM Université du Québec à Montréal
Help of the ANR 224,640 euros
Beginning and duration of the scientific project: December 2016 - 36 Months