ElderLaw News — The Estate Planning & Elder Law Firm, P.C. — MD, VA, DC
ElderLaw News

ElderLaw News is a weekly e-newsletter that brings you reports of legal developments and other trends of vital interest to seniors and their advocates. This newsletter is brought to you by The Estate Planning & Elder Law Firm, P.C., William S. Fralin, Esq., President., William S. Fralin, Esq., President.

Intimacy and the Elderly

This topic is one of those things that probably did not have to be considered 20-30 years ago, but with increased life spans and people being cared for in facilities in their later years, it one that is increasingly being faced by caregivers.

In some cases, the intimacy may include sexual relations between spouses, or it can even be between residents at a facility. Now one may think that sexual intimacy between spouses is not a problem, but if one of the partners is in an advanced stage of Alzheimer's, even that can cause problems. Does the individual with advanced Alzheimer’s truly have the capacity to consent to sex? These are questions facing facilities today. The law is still uncertain and developing on the subject. There are currently no laws dealing with sexual relations in assisted living facilities.

Some facilities have taken the position that if the person can no longer give informed consent, sexual relations for that individual should not be allowed, be it with a spouse or another resident. For example, there was a case in Coralville, Iowa involving a facility named Windmill Manor that resulted in a 3 1/2 -year court case. Two residents, both with dementia and who were not married to each other, were found having sex. The administrator of the facility and the director of nursing were both fired. The man’s family removed him from the facility and they had to travel several hours to the new one, while Windmill Manor was minutes away. The woman continued to reside at Windmill Manor. However, while the relationship was ongoing, the woman seemed calmer and happier.

A facility which has taken a different approach is the Hebrew Home in Riverdale, NY. The president and CEO, Dan Reingold, feels that romantic relationships should be encouraged at facilities. His feeling is that nothing can make anyone feel as good as waking up in the morning and having the urge to see a boyfriend or girlfriend. The view at his facility is that, no matter the lack of capacity, the presumption is that the individual can consent. Then they watch and see how the relationship develops. Do the individuals seem comfortable with what’s happening? They inform the families. If one’s family outright objects, they will respect those wishes. However, some families give an OK. Sandra Day O’Connor, the former Supreme Court Justice, was herself in such a situation. While her husband had dementia and resided in a facility, he started acting amorous toward another female resident. He obviously wasn’t trying to hurt his wife, but Justice O’Connor saw that the relationship made him happy, and she did not interfere. He no longer was the person whom she had married, and she gave him the leeway to adjust to his new life in the way which seemed best for him.

The best advice that can be given at this time is to know the policy of the facility in which one is contemplating placing a loved one. Also, be watchful. Ask who your relative is spending time with. Are they holding hands with someone of the opposite sex and seeking them out in the social activities that the facility provides? That would be a good indication that things could progress further. Then the family can make an informed decision as to how they would like things handled. The goal, in the final analysis, is that the individual be empowered to make his or her own decisions for as long as possible. Dementia doesn’t have to mean an end to love and intimacy. It just means that how love and emotions are expressed may change as the individual progresses with the disease.

(Intimacy and dementia: is there a time to stop having sex? Kennard, C. http://www.healthcentral.com/alzheimers/c/57548/24937/time-stop-sex)  (from the NPR interview on July 22, 2013 at 3 PM between Bryan Gruley, reporter-at-large for Bloomberg News and Melissa Block of NPR “Can Elderly Patients With Dementia Consent To Sex?”) (http://www.npr.org/templates/story/story.php?storyId=204580868)

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The Estate Planning & Elder Law Firm, P.C. is an elder law firm. We represent older persons, disabled persons, their families, and their advocates. The practice of elder law includes estate planning, estate and trust administration, powers of attorney, advance medical directives, titling of assets and designations of beneficiaries, guardianships, conservatorships, and public entitlements such as Medicaid, Medicare, Social Security, and SSI, disability planning, income tax planning and preparation, care management, and fiduciary services. For more information about The Estate Planning & Elder Law Firm, P.C., please visit our website at http://www.chroniccareadvocacy.com.

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