This is the second part of a two-part series.
The Hebrew Home is a well-known nursing home facility located in New York. It is considered one of the best in the country. Twenty years ago, it became the first facility to implement a “sexual expressions” policy for its residents. However, few facilities have followed suit. In fact, most facilities do not have a policy concerning their resident’s rights to have sex with a spouse or any other person. The conversation that began with the Rayhons case will hopefully encourage facilities to look into implementing such a policy.
In the Rayhons case, the prosecutor focused on the incapacity of Donna Rayhons. The prosecutor compared Donna to a twelve-year-old child who is unable to consent simply because the child lacks the capacity to consent. Similarly, the prosecution argued, Donna Rayhons’ Alzheimer’s disease made her incapable of consenting to sex whether she “wanted” to or not. This question of how to determine whether an adult can no longer consent to sex, especially with a spouse, is a difficult one.
The fact that dementia patients have varying levels and moments of capacity makes it even trickier. Many suffering from dementia have “good” days and “bad” days – even “good” hours or minutes and “bad” hours or minutes. So, how do we measure capacity? Is it best to say that once a person has been diagnosed with dementia and has moments of lacking capacity they should no longer be able to consent to sexual activity? Even if we determine that dementia patients do continue to have a right to consent to sex even though they have the disease, the questions don’t stop there.
Many couples who now face this situation may have never discussed how they would like it handled. The Rayhons case has brought the issue of intimate contact to light and now gives couples an opportunity to discuss and decide how they would like the other to proceed if one later develops dementia or any other mentally disabling disease.
There are documents that can be added to the planning done for seniors that address many of these issues. For example, additional provisions can be added to a durable power of attorney or health care document that addresses issues of companionship, facility choice, and personal relationships. “Compassion contracts” are also being discussed as a possibility for couples to consider. With a “compassion contract” a couple can agree in advance that each will allow and hold the other harmless for seeking companionship from a third party when one of them no longer recognizes the other. Any variation of such an agreement can be made by the couple to guide them in this unfamiliar territory.
While there are no clear-cut answers to the questions that have been raised by the Rayhons case, it has given the Elder Law community an opportunity to seek better solutions for all. If you or someone you know would benefit from speaking to an Elder Law attorney about the issues I raised or any other legal issues, please do not hesitate to contact me at 757.259.0707. I am always happy to hear from you.