The elderly have the ethical and legal equivalence of younger adults, yet are treated differently by society. Numerous recent reports have exposed poor inpatient care resulting in part from institutional ageism, which has moral and legal implications for healthcare providers. Morally, there is an argument for positive ‘exceptionalism’ in elderly peri-operative care, pursuing quality improvement through use of a dignity agenda. Legally, numerous changes in human rights, equality, consent, capacity, and end-of-life laws and professional guidance have consistently re-emphasised the need for greater communication between doctors, patients, their relatives and carers. This review describes current ethical thinking and legal precedent (in England and Wales), and directs readers to consider areas in which the law might change in the near future, particularly with regard to the end-of-life care of elderly surgical patients.