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.

Freedom of Sexual Expression for Elderly and Disabled Adults

Over the last year, the topic of sexuality in elderly or disabled adults has become an increasingly popular topic of conversation among advocates and service providers.

Families face conflicts when they need to balance the happiness of their loved one with personal feelings of what is socially or morally appropriate. On the other hand, facilities are concerned with potential liability. And, while there is no one size fits all solution, understanding why there is a concern and looking at solutions that have worked helps.

The primary issue surrounding sex in elderly or disabled adult populations is whether the individual has the capacity to consent to the act. Upon reaching the age of 18, there is a presumption that an individual has obtained the requisite capacity to consent, or not consent. In Virginia, incapacity is defined under the Guardianship, Criminal, and Adult Protective Services code sections in various manners. The underlying commonality, however, is that to have capacity to consent to a particular act, the individual must understand what they are doing and the consequences of the act. What this means is that, although someone may not have capacity to manage their finances or provide for their own daily care, they may have the capacity to vote, execute estate-planning documents, or engage in sexual acts.

In 1995, the Hebrew Home at Riverdale in New York caused great controversy when they adopted a policy promoting sexual expression for its residents. Although the policy has been amended twice over the last 20 years, the basic premise is that persons, regardless of age or disability, have a right to autonomy and privacy. These rights further extend to a right to engage in sexual activity, so long as the participants can consent via affirmative word or acts. The policy does, however, recognize that a diagnosis of Alzheimer’s disease or dementia will require a more thorough assessment to confirm the ability to consent and ensure safety.

Some advocates promoting freedom of sexual expression have gone as far as to indicate that a “Sexual Power of Attorney” should be developed. From a legal standpoint, the ability to consent to sexual acts may been seen as a decision so personal an agent would not be able to make the decision absent a clear expression of the principal’s desires related to sexual freedom.

The important take away is that there are concerns that must be assessed, but there are ways to encourage support of a person’s individual decision. And, because a fiduciary is tasked with carrying out the desires of the individual for whom they act, it is important to understand what acts that person has the ability to consent to and what, if any, express provisions they have made.


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The Estate Planning & Elder Law Firm, P.C.

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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This newsletter is not intended as a substitute for legal counsel. While every precaution has been taken to make this newsletter accurate, we assume no responsibility for errors, omissions, or damages resulting from the use of the information in this newsletter. The Estate Planning & Elder Law Firm, P.C. thanks the law firm of Hook Law Center for their input to this newsletter.

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