The purpose of this text is to demonstrate that the constitutionalism of the contemporary constitutional state, which has been designated as neo-constitutionalism, constitutes an environment conducive to the realisation of the fundamental rights of the elderly, notably through the action of the judiciary. By setting out the main aspects of what has been described as a neo-constitutionalism, as a theory of law, with its origin, concept and main characteristics, it is clear that the continuing benefit, which is a fundamental right established by the Brazilian Constitution in favour of the elderly and persons with disabilities, has achieved greater levels of effectiveness only thanks to the undermining of the judiciary.