In recent years, there has been an increased awareness of sexual issues facing the elderly who have diminished mental capacity and live in nursing homes and other long-term care facilities. Sexuality is often perceived as a basic human need and is often seen as the expression of intimacy. Commentators have noted people are generally living longer and that with this is an increased risk that “more people will be living for extended periods of time with cognitive impairments that deprive them of the legal capacity to consent to sex.” However, these same people may still express sexual desire, whether it is with their spouse, partner, or another individual such as roommate in the facility.

According to a 2010 article in the British Medical Journal, about 31% of men and women between ages 65-74 engage in sexual intercourse at least once per week; Even about 23% of those between ages 75-85 engage in such activity at least once per week. For individuals suffering from Alzheimer’s disease, touch is usually the last sense to deteriorate. Some researchers have noted that similarly for younger individuals, older individuals can benefit from sexual activity because it can reduce heart disease, reduce depression, relieve pain, and lead to better cardiovascular fitness.

However, risks in increased sexual activity raise a whole host of problems, namely an increase in venereal diseases in nursing homes and questions about mental capacity and consent to engage in such activity. These long-term care facilities are concerned with liability and elder abuse/neglect accusations if they allow uninhibited sexual activity to occur.

In one case, known as the Windmill Manor case, at an Iowa nursing home several years ago, a 78-year-old man and 87-year-old woman engaged in sexual intercourse. Both had severe cognitive impairments which some have labeled as dementia. The nursing home lost its license and the director was fired even though there was not necessarily a lack of consent by the patients. The presumption is that the patients because of their deteriorated mental state could not consent.

Dementia

Dementia is often used as an umbrella term for various diseases causing cognitive loss, including Alzheimer’s disease. Studies have shown dementia can cause a lack of impulse control. In addition, sexual desire can vary anywhere between total loss of desire and hyper-sexual interest. The majority of nursing home patients have some form of dementia which makes sexual issues an increasingly important issue.

Long-term care facilities have many legal and professional obligations to protect residents from harm. Among these are the legal duty to uphold residents’ rights to be treated with respect and to have their privacy respected. Here, it is easy to see how the tension between facilities’ responsibilities and a patient’s individual autonomy could result in the erosion of the right to self-determination.

The Limited Tools Currently in Place to Address These Issues

First, most long-term care facilities have a resident’s bill of rights, most notably including a right to privacy and the right of married resident couples to share the same room.

Second, most states have outlined rights such as a right to privacy, a right to close doors, and a right to have private visitations inside the facility. However, these do not explicitly state a right to engage in sexual intercourse.

Third, about 25 states, but not yet Massachusetts, have enacted mental health advance directives. These are relatively new legal instruments that may be used to document a competent person’s specific instructions or preferences regarding future mental health treatment.  Such directives can be used to plan for the possibility that someone may lose capacity to give or withhold informed consent to treatment during episodes of mental incapacity.

Mental Health Directives and Sexual Preferences

A few states, including the State of Washington, through their mental health directive statutes, allow one to state his or her sexual preferences regarding future intimate relationships in the event he or she becomes mentally incapacitated (hereinafter referred to as “ill”). The Washington State statute allows one to plan for three possibilities.

One option, the most common and least controversial, allows the ill individuals to state they wish to maintain intimate relationships with their well spouses/partners. Most ill individuals as well as their well spouses/partners would wish to continue their intimate relationship. However, there is the risk the ill spouses/partners may be upset by sexual advances by their well spouses/partners when they can no longer remember who they are.

Another option is for the ill spouses/partners to consent to their well spouses/partners having a relationship outside of the marriage. Some ill spouses/partners may want their well spouses/partners seek other relationships when the ill spouses/partners can no longer be there emotionally for them. However, others believe their moral and religious codes require the couple to remain faithful to one another through sickness as well as health.

The other option is for the ill spouses/partners to consent to having future intimate relationships with others for themselves. Researchers have noted the ill spouses/partners may want to have romantic or sexual relationships with another person who is in the facility instead of the well spouse/partner. The well spouses/partners may tolerate these kinds of relationships because they want to see their ill spouse/partner happy again. However, adult children of the ill spouse/partner are many times the ones who would disapprove of these types of relationships.

Despite these tools, the issue of legal consent and liability for long-term care facilities remains. Regardless of whether one would feel comfortable having this discussion, this issue is not going away and will likely become more prevalent in the future as more people live longer and need long-term care.

An elder law attorney who is well-versed in the constantly-evolving personal issues facing elderly clients can advise you with regard to these and other issues that relate to our aging population.