Growing old does not mean losing the right to make decisions

One of the most contentious issues surrounding ageing is the assumption that growing old automatically translates into mental deterioration. This perception has created a clash between two opposing schools of thought: those who associate advancing age with declining intellectual capacity and those who argue that chronological age should never be confused with mental incompetence.

The disagreement goes beyond a philosophical debate. It touches on family relationships, inheritance, land ownership, leadership, financial independence, healthcare and the fundamental right of elderly people to determine the direction of their lives.

In Kenya, where land, family property, generational wealth and traditional family structures remain important aspects of social life, the question becomes even more complicated.

A parent who has spent decades raising children, building a family business, acquiring property and making important decisions may suddenly find their judgement questioned simply because they have grown older.

But does reaching the age of 70, 80 or even 90 automatically mean losing the ability to reason, understand circumstances or make independent decisions?

The answer is no.

Ageing is a natural biological process. Mental incapacity, on the other hand, requires proper assessment and evidence. The two should never be treated as interchangeable.

One of the greatest misconceptions about ageing is the tendency to interpret every change in behaviour, memory or physical ability as evidence of intellectual deterioration.

Although ageing can affect memory, processing speed and certain cognitive functions, it does not automatically deprive individuals of their intelligence, wisdom, reasoning or decision-making abilities.

Many elderly people remain intellectually active, emotionally mature and capable of making complex decisions well into their later years.

Some continue managing businesses, overseeing investments, participating in community leadership and providing guidance to younger generations.

Others may experience forgetfulness, slower information processing or difficulties recalling certain details without necessarily losing their ability to make important decisions.

Dementia and other neurological conditions can affect cognitive functioning, but they are not inevitable consequences of growing old.

The distinction is important because judging someone's mental competence purely by their chronological age can lead to discrimination and unnecessary restrictions on personal freedom.

Perhaps nowhere is the conflict between ageing and perceived mental decline more pronounced than within families.

As parents advance in age, disagreements may emerge over who should manage their finances, control family property, make healthcare decisions or oversee inherited wealth.

Some family members genuinely worry about the safety and welfare of elderly relatives. They may fear that an ageing parent could become vulnerable to financial exploitation, manipulation or poor decisions.

However, not every disagreement involving an elderly parent is evidence of mental deterioration.

A father who refuses to subdivide ancestral land according to his children's wishes is not necessarily suffering from impaired judgement. A mother who rejects a financial proposal from her children may simply have different priorities.

Similarly, an elderly person who resists modern technology, questions contemporary lifestyles or disagrees with younger relatives should not automatically be considered mentally incapable.

The danger arises when differences in opinion become grounds for questioning someone's competence.

In particularly contentious family situations, allegations of mental deterioration may become entangled with disputes over property, inheritance and control of family wealth.

This raises an uncomfortable possibility: concerns about mental capacity can sometimes be used to advance interests unrelated to the welfare of the elderly person.

The challenge is distinguishing genuine concern from attempts to take advantage of vulnerability.

In Kenya, land remains one of the most sensitive sources of family conflict.

For many elderly Kenyans, property represents decades of sacrifice, agricultural labour, investment and personal achievement. Some have spent their entire lives acquiring land and building homes intended to benefit future generations.

However, as these individuals grow older, disagreements can arise over succession planning, land subdivision, property management and inheritance.

An elderly parent may insist on retaining control of family property even when adult children believe it is time to distribute the assets.

Such disagreements can create tension, particularly where children have different expectations concerning inheritance.

The danger is that an elderly person's refusal to surrender control may be interpreted as evidence of mental deterioration.

Yet ownership and decision-making authority do not automatically transfer to children when their parents reach a particular age.

An elderly person who retains the necessary legal and mental capacity remains entitled to make decisions concerning their property, subject to applicable law.

Where genuine incapacity exists, appropriate legal procedures should be followed. Family members should not use intimidation, coercion or unilateral action to take control of another person's affairs.

Protecting elderly people from exploitation should never become an excuse for exploiting them.

Another dimension of the debate concerns the relationship between accumulated experience and contemporary thinking.

Younger generations may process certain types of information more quickly, adapt more easily to technological developments and approach economic opportunities differently.

Older people, however, often possess accumulated knowledge, historical perspective and experience acquired through decades of navigating difficult circumstances.

The speed at which someone processes information is not necessarily a measure of their wisdom or overall intelligence.

An elderly businessperson may take longer to evaluate a proposal but arrive at a more considered decision because of previous experiences.

A grandparent may reject an investment that appears attractive to younger relatives because they recognise risks that others have overlooked.

Experience does not make every decision correct, just as youth does not guarantee superior judgement.

The two generations should complement rather than undermine each other.

The protection of elderly people is not merely a matter of family responsibility or social courtesy. It is also a constitutional obligation.

Article 57 of the Constitution of Kenya specifically provides for the rights of older members of society.

It requires the State to take measures to ensure that older persons can fully participate in the affairs of society, pursue their personal development, live in dignity and respect, remain free from abuse, and receive reasonable care and assistance from their families and the State.

Article 27 also guarantees equality and freedom from discrimination, including discrimination on the basis of age and disability.

These constitutional protections provide an important foundation for challenging practices that automatically associate old age with incompetence.

The underlying principle is that older people remain individuals with rights, aspirations, responsibilities and the freedom to participate in decisions affecting their lives.

Their age should not become a convenient reason for excluding them from family, economic or community affairs.

An important distinction must be made between experiencing certain cognitive difficulties and being legally incapable of making decisions.

Mental capacity should be assessed in relation to the particular decision an individual is required to make.

A person may experience difficulty managing complicated financial transactions but remain capable of deciding where to live, whom to associate with and how to manage everyday personal affairs.

An assessment may consider whether the individual can understand relevant information, retain it sufficiently, appreciate the consequences of a decision and communicate their choice.

Medical professionals have an important role where cognitive impairment is suspected.

Legal intervention should also follow the applicable statutory procedures and protect the rights of the individual concerned.

This approach prevents families and institutions from making sweeping judgements based solely on age, appearance or isolated incidents of forgetfulness.

While age-based discrimination deserves serious attention, society must equally recognise that genuine cognitive impairment exists.

Alzheimer's disease and other forms of dementia can progressively affect memory, judgement, communication and the ability to undertake everyday activities.

Some elderly individuals may become increasingly vulnerable and require assistance with healthcare, financial management, personal safety and other important aspects of life.

Families facing such circumstances often encounter difficult emotional and practical decisions.

Ignoring genuine impairment in the name of preserving independence can expose vulnerable individuals to financial exploitation, neglect, accidents and other dangers.

Therefore, the debate should not be about defending old age against every indication of cognitive decline.

Rather, it should be about separating normal ageing from medical impairment and ensuring that any intervention is based on evidence, proportionality and respect for individual dignity.

Protection and independence should not be treated as mutually exclusive.

The importance of establishing mental incapacity through evidence was illustrated in the Kenyan High Court matter In re EKK alias EK, Petition E003 of 2023.

The case involved an application seeking the appointment of a guardian to manage the affairs and estate of a 78-year-old man.

Concerns had been raised about his health, including a history of stroke and memory loss.

However, the court emphasised that memory loss alone did not establish mental illness or demonstrate that an individual was incapable of managing personal affairs.

The need for appropriate medical evidence and compliance with the applicable legal threshold was central to the determination.

The petition and cross-petition were dismissed because the necessary threshold had not been established.

The case provides an important lesson for families dealing with elderly relatives: concerns about mental capacity must be supported by evidence and handled through appropriate legal procedures.

An individual's age or medical history should not automatically become grounds for taking away their autonomy.

The responsibility of protecting older people cannot be left entirely to individual families.

The government has an important role in strengthening healthcare services, supporting caregivers, improving social protection and establishing mechanisms for reporting elder abuse and financial exploitation.

Kenya's constitutional framework already recognises the importance of protecting older persons.

However, constitutional recognition must translate into practical assistance, particularly for elderly people living in poverty, those without dependable family support and those requiring specialised healthcare.

The proposed Older Persons Bill has also featured in discussions about strengthening the country's framework for protecting older citizens.

The legislative process should prioritise dignity, participation, protection against abuse, access to healthcare and support for independent living.

Equally important is ensuring that older people are not treated as passive recipients of assistance but as individuals who should participate in decisions concerning their welfare.

There is a need for a fundamental change in how society understands ageing.

Older people should not be viewed exclusively through the lenses of dependency, vulnerability and declining physical abilities.

They have different experiences, intellectual abilities, health conditions and personal circumstances.

Some require extensive assistance, while others remain independent and actively involved in business, community leadership, family responsibilities and public affairs.

Families must learn to distinguish between offering assistance and taking away independence.

Younger generations should also recognise that disagreement with an elderly person's opinions does not automatically indicate impaired judgement.

At the same time, older people should not be denied appropriate medical attention when genuine symptoms of cognitive deterioration emerge.

A balanced society must protect vulnerable individuals without undermining the rights of those who remain capable of making their own decisions.

Perhaps the greatest injustice society can inflict on older people is to make them feel that their years of experience have become a liability.

A person should not lose their authority simply because they have grown older. Neither should genuine medical conditions be ignored in the name of preserving independence.

The two positions are not incompatible. Society can protect elderly people from exploitation while respecting their autonomy. Families can provide assistance without assuming ownership of their parents' decisions.

Ultimately, the question should not be how old someone has become, but whether there is credible evidence that their ability to make a particular decision has been impaired.

Age is a measure of time lived, not an automatic measure of intellectual ability.

Growing old does not mean surrendering one's humanity, forfeiting one's rights or losing the entitlement to be heard.

A society that confuses ageing with incompetence risks turning the final chapters of human life into a struggle for control, dignity and recognition.

The elderly deserve care, but they also deserve respect. They need protection, but they must not be stripped of independence without justification.