The Current Conundrum of Dementia and Consensual Sexual Relations

Assisi flowerbox

Assisi flowerbox

As promised in a previous post, I’m taking another look at this topic which is certain to become more controversial as situations in long term care facilities continue to present themselves.  This topic is of recent relevance due to the acquittal of an Iowa man  who was tried for sexual abuse of his now deceased wife, who suffered from dementia and resided in a skilled nursing facility.  After eight days of trial, the jury deliberated nearly two full days to deliver their verdict.  This criminal trial may be the first time a jury has considered the issue of a person’s capacity to consent to sexual relations when a person has dementia.

The man tried was a 79 year-old former Iowa state legislator (Mr. Rayhons) who was charged with having sexual relations with his wife at a long term care facility.  The prosecution had argued that exceptions to the criminal sexual acts statute did not apply because the husband and wife were not cohabiting.  This case ushers in a new era for the important question of how to balance rights and protections.  As the age of the numerous baby boomers increases, this question will undoubtedly be raised again, particularly when the number of divorced or remarried boomers begin to occupy more space in skilled nursing facilities or other communal living.  Sexual expression in SNFs is not necessarily a taboo subject.   The Hebrew Home at Riverdale (NY) first published their “Policies and Procedures Concerning Sexual Expression” in 1995.  In it is found empowering statements about residents’ rights to sexual expression and special factors apply where a resident has cognitive impairment which implicated the ability to form and give consent.    I’ve come up with a not-very-short list of some of the big picture questions raised by this case:

  • What is the requisite capacity required to consent to sexual relations for an older adult?

 

  • How can this capacity be expressed appropriately?

 

  • Is the nature of consent to sexual relations different for married persons?

 

  • Does the nature of sexual expression change as we age?

 

  • Who is responsible and how is a determination of consent made when the resident has a guardian (a person who is legally responsible for an incapacitated person)?

 

  • How can a health care provider or an adult child interfere with or help support an older person in their choice of sexual expression?

 

  • What is the zone of privacy for a married couple when one spouse lives in a skilled nursing facility or similar group setting?

 

  • Is consent to sexual relations for a person with dementia actually a medical issue appropriate for a doctor to make?

 

  • If a person with late stage dementia is not capable of giving consent, would this make any form of the person’s sexual expression tantamount to rape?

 

 

  • In looking at dementia and intimate relations in long term care facilities – what are the stakes in the rights vs. protection continuum?

 

  • What about divorced or otherwise single folks and all the blended families? How many people are involved in the notification and determination process?

 

  • Is this a capacity issue or an ageism issue? I would say the this involves both issues . . .

In the Rayhons case, the late Mrs. Rayhons’ daughters took their concerns for their mother’s ability to consent to sex by taking the question of capacity to the doctor on staff.

What this case clearly demonstrates is the number of difficult questions presented in identifying the factors for considering sexual expression in the skilled nursing facility.  There is a present need to establish some basic consensus about residents’ rights to sexual expression in long term care facilities.   Groundwork needs to be taking place now.  How many of us consider this question when we visit a facility to consider housing options?

I will note that in this post I am not looking at how sexual expression rights in long term care facilities are implicated when residents also suffer from mental illness or when there are sex offenders residing in the facility.  Colorado does not at this time have any particular laws or regulations regarding sex offenders (or sexually violent predators) in long term care facilities, so it seems unlikely that an applicant for housing in a particular facility would be barred as a result of sex offender status, but the facilities themselves may adopt or follow their own policies in this regard so as to minimize risk to its residents.

©Barbara Cashman  2015   www.DenverElderLaw.org

Longevity, Caregiving and the Need for Advance Planning

Springtime in Italy

Springtime in Italy

This Friday (April 24, 2015), I will be speaking at the AARP Colorado Caregiving Symposium at the Arvada Center for Performing Arts.  For that event, I’m looking forward to a “talk show” kind of interactive format designed to engage the audience.  One of the topics I will be focusing on which is obviously relevant to caregiving – is about how we can better navigate our longevity.  A portion of that will look at some of the important conversations to have and documents to have in place.

      What is Health Care Self-Determination?

All of us will die someday, but the majority of us will be disabled or incapacitated (temporarily or longer) before we die. This is but one of the “side effects” of increased longevity.  Having the difficult conversation now – with your family members, loved ones, even your health care providers – can make a huge difference in the type of care you receive and the stress and strain placed on your family in the event of an incapacitating health crisis.   Information is key to maintaining one’s ability to decide.  Here’s a link to a recent article in Forbes with Dr. Atul Gawande (author of the recently released book Being Mortal) about how paying more for doing more health care isn’t such a great deal.

Identifying your surrogate decision maker (a/k/a agent under a medical durable POA) is the most important first step. Before you name this person and a successor agent, you must have a conversation with them to make sure they are willing and able to perform this important job in the even the need arises.  For them to perform this job, the person giving the MDPOA, the principal, must give some important instructions to the named agent and successor agent. Medical Durable POAs, along with other documents, are effective ways to manage uncertainty, to identify the people you want to make health care and other personal decisions for you if you are unable and to give them instruction about what to do.

       What About a Medical Durable POA?

An MDPOA is a simple, inexpensive, and reliable way to arrange for someone to make health care decisions for another (i.e., give informed consent) in the event the principal is, in the opinion of the health care provider, unable to give informed consent.

The types of decisions an agent can make can be broad or narrow, general or specific and the agent’s authority is typically set for the power of attorney document.  I am in favor of powers that confer broad authority on an agent.  This is for two reasons: it requires the principal have a conversation with the agent about what the principal wants (a conversation about these matters is necessary); and there is little likelihood for confusion about what an agent can do.  I tend to think that a short document is best, given the amount of time that health care providers spend with their patients, it is not a great idea to draft a long and complicated document for this purpose.

       Why Do I Need to Have This Conversation? I Really Don’t Want To!

The cost of death denial in our culture is high.  End-of-life situations involving elders are often fraught with emotionality and conflict, and death’s finality does not often bring peace or resolution to a conflict that involves death and grief for a loved one.  Beyond the emotional costs are also the financial, psychological and ethical costs.  If you haven’t named an agent or made any advance directive or other statement of your wishes at the end of your life (when you are not able to decide for yourself), someone else will be charged with making decisions for you, and this is where we have seen much tragedy and conflict result.  In the past we sometimes called these measures heroic, but the connotation was misleading at best.  The term used now is “futile.”   In addition, having the conversation helps ensure that others know of the existence of any advance directive you have.  That is an extremely important detail if one becomes incapacitated.  Here’s a good New York Times article about this topic.

       Tell Me More About These Health Care Documents. . .

If you want to avoid this medical care and personal care related kind of stress and strain on your loved ones, consider the following documents:

  • Medical (Health Care) Power of Attorney
  • Advance Directive
  • CPR Directive (DNR, a medical document which must be signed by a doctor)
  • MOST Form (recently updated in CO, for elderly, chronically or seriously ill persons)

The Colorado Medical Treatment Decision Act is found at Colo.Rev.Stat. 15-18-101 et seq.  The statute allows any adult with “decisional capacity” to execute a declaration.  “Decisional capacity” is defined in the statute at 15-18-103(6) as follows: the ability to provide informed consent to or refusal medical treatment or the ability to make an informed care benefit decision.  Note that the statute speaks about medical treatment decisions and also health care benefit decisions. Yes, our Colorado statutes cover all the bases here.  Colo.Rev.Stat. § 15-18.5-102 and 103 relate to the health care power of attorney for medical treatment, §15-18.5-104 and 105 (the statutory form for naming the surrogate) allows for appointment of a surrogate decision maker for health care benefits.  Why are these documents so important to have in place?  So that you can name a person in charge and know they will be able to perform an important job for you if you need their assistance.  If you don’t name anyone, there is a vacuum, which can result in a decision or lack of one, by a “committee” of family members.  If there is no MDPOA or the MDPOA does not work as intended, instituting guardianship proceedings in probate court may be necessary.

What If I Need Help With My Doctor Visits to Keep Track of All the Information?

In our fee-for-service based health care system, many patients can be overwhelmed by the choices, decisions and amount of information which must be managed effectively to exercise one’s self-determination in medical care. This is often the case with elders who have suffered a health crisis or have an illness which will affect their mobility or ability to live independently.  Consider enlisting the support of another set of eyes and ears for this purpose, in the form of a health care advocate.  A health care advocate is not only another set of eyes, ears and brain focused on medical decisions, the advocate can provide reassurance and companionship to help ensure an elder gets appropriate care, gets answers to questions and otherwise ensure understanding concerning health care services that are recommended.  If you are thinking about getting a health care advocate, make sure it is someone whose judgment you trust and is someone who is not afraid to ask questions or stand up to authority in unfamiliar or stressful situations.

Now that I’ve returned from my spring pilgrimage, I’m back on schedule for weekly blogposts.  Please stay tuned.

 ©Barbara Cashman  2015   www.DenverElderLaw.org