Probate & Property Magazine: November/December 2008, Vol. 22, No. 5

Trust & Estate

PDF DownloadIntimacy in the Elder Law Setting
By Michael A. Kirtland and Catherine Anne Seal


Michael A. Kirtland and Catherine Anne Seal are principals in the Colorado Springs, Colorado, firm of Kirtland & Seal. Mr. Kirtland is group vice-chair of the of the Trust & Estate Division Elder Law, Disability Planning and BioEthics Group and Section liason to the ABA Senior Lawyers Division; Ms. Seal is chair of Surrogate Decision Making Committee of the Trust and Estate Division Elder Law, Disability Planning and BioEthics Group.

Like Dylan Thomas's poetic exhortation to his dying father, America's baby boomers have no intention of going gently into the night. The first of the "official" baby boomers began to collect Social Security this year. (Baby boomers are defined as those born between 1946 and 1964. The first baby boomer signed up to collect Social Security in 2007. Born January 1, 1946, she is defined as the "first baby boomer." Barbara A. Butricia et al., It's All Relative: Understanding the Retirement Prospects of Baby Boomers (Urban Inst. 2003).) Not only are baby boomers the largest group of Americans, but also their life expectancies and their health standards are such that their effect on American society has modified, and will continue to modify, standards of behavior and expectations for older Americans. Id. at 3. As baby boomers age, they are just as likely to shake up what they find, and expect to find, in assisted living facilities (ALF) and nursing homes, as when they redefined much of America in their earlier lives. From youthful expectations during the Cold War to life on college campuses during the Age of Aquarius, to Me Generation consumerism, and on to issues involving politics, and now retirement, baby boomers will shake things up and rage against the dying of the light.

Sexuality is among the many aspects of American life that baby boomers have affected. Their effect on sexuality is not likely to diminish as they go not so gently into the night. For attorneys, the question becomes what the rights to intimacy are for older clients, especially when those rights are affected in their later years by the potential for diminished mental capacity. The significance of this question will most likely manifest itself in the institutional settings of ALFs and nursing homes. Issues of sexuality in institutional settings are only beginning to be seen, and so far those institutions have simply turned a blind eye to the tsunami of change and challenge they will inevitably face as their populations increasingly are composed of individuals from the baby boom generation.

This article is not intended to answer questions surrounding intimacy, capacity, and the rights of older clients, but rather simply to present issues and background. The answers, quite frankly, remain to be found by senior living facility administrators, elder law attorneys, the courts, and American society in general. Nor is this article intended to discuss obvious issues of sexual abuse, such as facility employees taking sexual advantage of facility residents. Rather, it is intended to discuss the legitimate sexual intimacy desires of residents and attempt to prod the reader into considering when the legitimate rights of residents merge into issues of capacity, privacy rights, and the moral judgments of others.

At first blush the issue of intimacy in an institutional setting is one of the right to privacy. Although this may be logistically complex in situations in which privacy problems revolve around residents sharing semi-private rooms, those issues likely will be resolved as ALFs and nursing homes face demands for privacy from residents who share intimate activities with their spouses or other chosen partners. A recent survey in the New England Journal of Medicine found that 26% of the population over 76 years of age reported being sexually active. S. Lindau et al., A Study of Sexuality and Health Among Older Adults in the United States, 357 New Eng. J. Med. 762–74 (2007). It may be an issue the institutions would prefer not to face, but one they will deal with, progressively or begrudgingly. But, when the question is not one of where to find privacy for intimacy but one of the capacity to demand and enjoy intimacy, that will complicate policies for institutional senior living facilities.

Of the approximately 76 million people comprising the baby boom generation, it is estimated that approximately 10 million will develop Alzheimer's disease. The Alzheimer's Association, 2008 Alzheimer's Disease Facts and Figures (2008). This figure represents a doubling of the current level of Alzheimer's disease patients in the population. Id. at 9. Alzheimer's disease is simply the best-known form of dementia, making up 60% to 80% of dementia cases. Other, less well known to the public, forms of dementia will affect the cognitive abilities of millions more senior citizens. Significantly, some of these other dementia forms, such as Dementia with Lewy Bodies and Frontotemporal Dementia, leave the individual with significant changes in his or her behavioral patterns, often including decreases in conformity to social norms and increases in sexual desires. Id. at 5, 6. The result of this is that, rather than the long assumed decrease in sexual interests and desires, at least a portion of the elderly population will actually have an increased libido, sometimes combined with a decrease in social inhibitions. S. Deacon et al., Sexuality and Older People: Revisiting the Assumptions, 21 Educational Gerontology 497–513 (1995). This portion of the dementia population may be in the neighborhood of 16%. J. Cummings & J. Victoroff, Noncognitive Neuropsychiatric Syndromes in Alzheimer's Disease, Neuropsychiatry, Neuropsychology, and Behavioral Neurology 3, 140–58 (1990). What is often seen as "acting out" in senior living facility residents, or anti-social behavior, is sometimes the result of their dementia instead. Dealing with these issues presents a challenge for elder law attorneys, who often deal with not just purely legal issues, but social and familial issues as well.

The right to sexual intimacy is at its core a right to privacy issue. Although restrictions are placed on the rights of minors to sexual intimacy, the right to sexual intimacy in competent adults is presumed in today's society. Many states have left their fornication, sodomy, and other similar statutes in their criminal codes. State and federal case law, however, has essentially abandoned any attempt to control or regulate the private sexual activities of competent, consenting adults on due process grounds, thereby relegating such sexually oriented statutes to the status of "blue laws." Lawrence v. Texas, 539 U.S. 558 (2003), essentially struck down laws against private, consensual homosexual acts and reversed Bowers v. Hardwick, 478 U.S. 186 (1986). See also Eisenstadt v. Baird, 405 U.S. 438 (1972), regarding the fundamental nature of the right to freedom from governmental interference in fundamental issues of procreation.

This, as a general rule, should counsel against attempts by the state, or a court, to define the meaning of a relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices to acknowledge that adults may choose to enter this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. Lawrence, 539 U.S. at 567.

As a result, the issue of the right to sexual intimacy in the institutional residency setting is essentially a logistical one, rather than a legal issue. But this in no way eliminates the many and varied issues remaining concerning what constitutes consent and how issues of competency enter into this discussion.

"Consent" as defined in Black's Law Dictionary is governed by "voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another." Black's Law Dictionary (6th ed. 1990), at 305. In the context of sexual intimacy, consent is normally defined in juxtaposition to lack of consent, resulting in rape or other forms of sexual abuse or misconduct. Lack of capacity to consent is seen as nonconsent and therefore results in a criminal act. (Various states use a variety of terms to define nonconsensual, and therefore criminal, sexual activities, ranging from the more traditional terms "rape" and "statutory rape" to "sexual abuse" and "sexual misconduct." Nothing in the use of these terms in this article is meant to be confined to the various state criminal code definitions of these terms. The reader should use the layman's definition of such terms and not attempt to parse them. It is beyond the scope of this article to delineate when sexual conduct becomes criminal.) From here, the subject quickly becomes quite complex. For example, Colorado's Unlawful Sexual Behavior statutes, Colo. Rev. Stat. §§ 18-3-401 et seq., include in the definition of "consent" that "[a] current or previous relationship shall not be sufficient to constitute consent under the provisions of this part 4." Colo. Rev. Stat. § 18-3-401(1.5). This language was undoubtedly intended to deal with nonconsensual sexual relations between married persons or those with an ongoing interpersonal relationship when both have capacity and to eliminate the historical marital privilege under which a husband by definition could not rape his wife. It would not be unreasonable to believe, however, that a zealous prosecutor might interpret this statement such that a person now lacking mental capacity, yet married to an individual for a lengthy period of time, could not consent to sexual intimacy with his or her spouse even though they were participating in sexual activities that had been the norm in their marital relationship for the entire length of the marriage. The substantive criminal code sections that follow specifically define "sexual assault" to include that the "actor knows that the victim is incapable of appraising the nature of the victim's conduct." Colo. Rev. Stat. § 18-3-402(1)(b). Similarly, Alabama 's criminal code uses essentially identical language to define "mentally defective" for the ability to consent to sexual activity. Ala. Code §§ 13A-6-60(5) and 13A-6-61(a)(2). Many other state statutes track this language, which stems from the Model Penal Code. Model Penal Code § 213.1(2)(b).

How does one interpret these statutes in light of the fact that mental capacity is not a light switch? The issue is not a bright line, black or white, test of whether an individual has capacity or does not have capacity to form consent. Under the uniform law on guardianship and protective proceedings, the modern trend is to recognize that mental capacity is a continuum on which an individual may have the ability to conduct certain activities while lacking capacity to evaluate and interpret other actions. National Conference of Commissioners on Uniform State Laws, Uniform Guardianship and Protective Proceedings Act, Prefatory Note (1997). Under the standards of this uniform act, an adjudication of incapacity is not sufficient to relieve the individual of all of his or her decisional capacity or privilege. Even the judicial determination of the need for a guardian is not a finding that the individual lacks mental capacity in all activities and thereby may fail the threshold set by criminal law statutes concerning the ability to consent to sexual intimacy.

Complicating the issue is the practical reality of how courts issue their guardianship orders, even in states that have adopted the Uniform Guardianship and Protective Proceedings Act (UGPPA). In non-UGPPA states the order granting guardianship typically is an all encompassing order granting the guardian all powers set forth in that state's guardianship statute. Even in states that have adopted UGPPA, though the statute calls for a detailed description of the authority of the guardian, and limitations on the authority of the guardian to necessary functions to protect the protected person, the typical order does not do this. See, for example, Colo. Rev. Stat. § 15-14-314. Assuming the statute is followed in spirit, the typical state law powers of a guardian do not come close to delineating the authority of the guardian, or the rights of the individual, for sexual intimacy. Attempting to obtain a court determination of the ability of an individual with diminished mental capacity to participate in sexual intimacy, or of the rights of that individual regarding his or her desire for sexual intimacy, is difficult at best, and a path likely to make the court significantly reluctant to act.

The issue of the right to sexual intimacy of an individual with diminished mental capacity is a difficult one under the best of circumstances, even when the individual has been declared legally incapacitated. Even more difficult is the question of the rights of an individual when incapacity has never been determined. When the individual, recognizing his or her impending incapacity, or simply through thoughtful estate planning, has executed medical and financial durable powers of attorney during a time when the individual held capacity, no judicial determination of incapacity would normally exist. One of the primary advantages to executing a powers of attorney is avoiding the need for guardianship or conservatorship proceedings and their inherent intrusion by the court in the private affairs of the individual. Without a judicial determination of incapacity, the rights of the individual are preserved, including the right to participate in sexual intimacy.

Even in situations in which the parties who have special concern and care for the individual recognize that the individual has diminished capacity, it is not likely that even the most liberal interpretations of the rights of an agent under a power of attorney would include the power to determine the right of the individual to participate in sexual intimacy. In any event, without a determination that the individual lacks mental capacity to make his or her own decisions, the agent would not have the ability to override the decisions and desires of the principal. General powers of attorney are designed to permit the agent to conduct business and financial activities on behalf of the principal. Nothing in a typical authorizing statute for a general power of attorney would permit the agent to make decisions concerning sexual intimacy. As agent under a medical power of attorney no such authorities would appear to exist either. Medical power of attorney statutes generally authorize the agent to make decisions concerning medical care. Although sex is a physical act, it strains credulityto consider sexual intimacy as medical treatment. See, for example, Colo. Rev. Stat. § 15-14-506, authorizing the agent under a medical power of attorney to "act on behalf of the individual in consenting to or refusing medical treatment." In any event, an agent under a power of attorney is a fiduciary who must exercise his or her authority in conformity to the wishes of the principal and not to the agent's personal moral beliefs concerning the conduct of the principal. Colo. Rev. Stat. § 15-14-508(2).

The decision in Lawrence and other cases, combined with the traditional reluctance of courts to enter into issues of consensual sexual activities by adults, leaves little statutory or case law for guidance on issues that increasingly will be presented to ALFs and nursing homes regarding the rights of their residents to sexual intimacy. Compounding the question is the reality that no single set of facts and circumstances defines the question of the rights to sexual intimacy of individuals with diminished capacity.

Superimposed on the rights of individuals with diminished capacity to sexual intimacy is the moral judgment placed on such activities by other actors in the life of the individual with diminished capacity. Although often institutional administrators and employees are the objectors to such activities, they are not alone. Quite often it is the adult children of the individual who object to mom or dad's participation in sexual activities, for a variety of reasons. The objection may be to the parent having sexual intimacy with someone other than the other parent of the adult child. It may be the personal moral or religious values of the adult child that run against the grain of such activities. Or it may simply be the classic case of the adult child not wanting to have to contemplate sexual activity in their elderly parent. In American society it is almost impossible to discuss the subject of sexual intimacy without the imposition of personal moral values. In the case of sexual intimacy among elderly persons, especially elderly persons with diminished capacity, this is even more true.

A look at representative cases presented to elder law attorneys reflects the problematic issues that routinely present themselves concerning sexual intimacy. The following case studies, presented by elder law attorneys who deal with such issues as a part of their practices, reflect a representative sample of the multi-faceted questions that must be contemplated to deal with sexual intimacy among persons with diminished capacity. (Note: Although these case studies are based on actual cases, careful steps have been taken to mask the identities of the individuals and attorneys involved.)

In dealing with the question of the right to sexual intimacy for persons with diminished capacity, the old adage that where you sit determines what you see applies. Even in a particular case, the appropriate path is influenced highly by whether the attorney is representing the institutional facility, family members, or the individual with diminished capacity as legal counsel or as guardian ad litem. Consider the following.

Case No. 1

Mrs. A, a widowed 80-year-old, has mild dementia and lives in an ALF. She is quite physically active and has few inhibitions. She is charming and outgoing. She also has a strong sex drive. She is quite popular with the single male residents in the ALF, and with some of the married male residents as well. It is Mrs. A's behavioral pattern to engage male residents in sexual intimacy on a short-term basis and then "move on" to the next male. She makes it a habit to meet the new male residents, who then are added to her growing list of conquests. Although it is possible that her dementia may be decreasing her social inhibitions, in fact this behavior is part of a life-long pattern of promiscuity. Her adult daughters do not approve of their mother's promiscuity and never have. They have used their power of attorney to move Mrs. A from one ALF to another in an attempt to restrict her social contacts. As might be expected, just the opposite has occurred. Mrs. A sees nothing wrong with serial, short-term, sexually intimate relationships. You have been appointed by the court as her guardian ad litem.

As the guardian ad litem, the attorney's duties are to attempt to implement a plan that is in the best interests of Mrs. A. But, what are those interests? Although Mrs. A's life-long pattern of sexual behavior has been highly active and involved multiple partners on short-term bases, the question is not whether Mrs. A's behavior is "right" or "wrong," but whether her activities cause her to conduct herself in a way that is unsafe. As guardian ad litem, you must be a part of any effort to fend off the institution's efforts to restrict Mrs. A's activities on privacy grounds, as well as any efforts that may ensue to evict Mrs. A from the facility based on inappropriate grounds, as may well occur if the facility attempts to resolve its issues by the simple solution of moving the individual down the road to the next facility. At the same time, it is reasonable to take actions to ensure that Mrs. A is conducting her intimate activities in a medically safe way. The fabled fertile octogenarian of law school fame notwithstanding, reasonable efforts to protect Mrs. A from sexually transmitted diseases should be considered as part of the solution. Counseling the adult children is also a reasonable step. In a case such as the one presented here, insufficient grounds likely exist to attempt to restrict Mrs. A's activities. A "mild dementia" probably is insufficient grounds to determine if Mrs. A lacks the capacity to determine her own pattern of sexual behavior. Protecting Mrs. A's health, while at the same time ensuring that her rights to intimacy are protected, is the likely best course of action for the guardian ad litem.

Case No. 2

Mr. and Mrs. B are a couple, married for over 40 years. Mrs. B suffers moderate dementia and as a result lives in a nursing home. Mr. B is declining physically but could live in an ALF. By his preference, he lives with Mrs. B in a suite at the nursing home. Mr. and Mrs. B are sexually active, but the medical staff at the nursing home has expressed concerns about Mrs. B's ability to consent to such activity. On a recent occasion a member of the facility staff entered the Bs' suite and observed Mr. and Mrs. B engaged in sexual relations that involved sadomasochistic activity. On investigation it was learned from Mr. B that this was a life-long lifestyle of Mr. and Mrs. B. When questioned, Mrs. B told the investigator that she enjoyed such activities and considered it none of the investigator's business. You have been appointed as guardian ad litem by the court.

As with the first case, the attorney is dealing with a life-long pattern of sexual behavior. Perhaps even more so than the sexual promiscuity of Mrs. A in the first case, the nonmainstream nature of the intimate activities of Mr. and Mrs. B factor into the reaction outside parties have to the propriety of Mr. and Mrs. B's activities. Although there are few, if any, reliable figures on the number of people participating in such nonmainstream activities as Mr. and Mrs. B enjoy, some sources estimate that in the area of 7% of adults may practice such behaviors. Brian Alexander, All Dressed Up—In Latex and Dog Collars, America Unzipped, MSNBC.com, Oct. 27, 2006, available at www.msnbc.msn.com/id/14061671. It is unlikely such people will cease life-long activities simply because they are growing older. Here the attorney is dealing with a married couple, individuals with inherent rights to private sexual behavior between themselves without any interference from others. Yet at the same time, state criminal statutes concerning nonconsensuality come into play, possibly complicated by state statutes concerning what constitutes assault. Mrs. B has not been adjudicated incapacitated in any way and has indicated to you, as guardian ad litem, that she enjoys her and her husband's activities and considers them no one else's business. Consultation with Mrs. B's doctors on her capacity is appropriate, as is possibly additional neuropsychological testing to further determine her mental capacity to consent. Here, the intimate desires of a married couple should determine your course of action as the guardian ad litem, without judging the nature of this couple's intimate activities. On the other hand, because of the type of activities involved, the guardian ad litem must also consider whether such activities are safe for Mrs. B to engage in and counsel the couple on this subject.

What is seen here is that in these types of cases the role of the guardian ad litem may go far beyond traditional legal considerations, into social and moral considerations as well. One factor that the legal system may need to address is the additional training and background necessary for the appointment of a guardian ad litem in any particular case, rather than the traditional method of simply appointing the next name on the court's guardian ad litem appointment list.

Case No. 3

Mr. C is a single, 84-year-old male, living in an ALF. In all aspects he appears to be a model resident. But he spends a great deal of his time viewing pornographic material and masturbating. He only participates in these activities in the privacy of his own single room. Because of the frequency of his activities, however, on multiple occasions members of the staff have entered his room and interrupted him during the course of his activities. You have been retained by the facility to determine a proper course of action to bring about Mr. C's removal from the facility.

Case No. 4

Mr. D is a single male with moderate dementia, living in an ALF who has recently become involved with Mrs. E., a widow who has for many years come to the facility to interact with residents to enhance their lifestyle and lead group activities at the facility. She is a volunteer from a local community service group. Mr. D and Mrs. E have become romantically involved and spend a good deal of their evenings in Mr. D's private room, where the staff believes they engage in sexual activities. The facility has contacted you as they have never had a policy on sexual relations for their residents, either with each other or with individuals who are not residents of the facility.

Both of these cases involve questions of facility policy. Unfortunately, as is too often the case in such situations, it appears that the core problem is not so much one of the activities of the individual facility residents as it is a question of lack of any facility policy statement concerning intimate activities. In the case of Mr. C, the staff seems to have little regard for the privacy rights of its resident, believing it their right as staff to enter into the private quarters of the resident as they wish. Although on the one hand this seems appropriate, because it is the obligation of the facility to ensure the safety and welfare of its residents at all times, on the other hand, the facility is the residents' "home." It is the only place where they can enjoy privacy and the satisfaction of their sexual desires. In the second scenario, it appears the facility has simply turned a blind eye to the possibility that its residents may desire privacy and space to enjoy intimate behavior. As legal counsel to the facility, encouraging the development of a general written policy concerning privacy and the right to intimacy is appropriate. The facility may resist such a recommendation, not wanting to consider its ramifications. But, as in these two cases, the failure to develop such a policy can have negative consequences, for both the facility and the residents. Legal counsel for the facilities may have to broaden their own backgrounds on the subject of privacy rights and administrative laws and procedure to develop a comprehensive policy on the subjects of privacy and intimate activities. Dealing with the issues on a case-by-case basis does not solve the problem and could lead to conflicting resolutions that may leave the facility in legal jeopardy in the future. Encouraging each facility to address the subject and assisting them to draft a policy is the appropriate course of legal action.

Case No. 5

Mr. and Mrs. F are a married couple, both of whom live in a local nursing home. Mrs. F suffers moderate dementia, and some have begun to question whether she really understands that Mr. F is her husband. Based on nursing home policy, though they are married they live in separate rooms, he on the all male wing of the facility and she on the all female wing. While they live separately in the facility, they do see each other and spend time together daily. Staff members have noticed that they seem to disappear from sight on a regular basis each week. On at least one occasion a staff member found them engaged in sexual activities in an empty room in the facility. They have been warned informally by staff that the facility does not permit sexual activity among its residents. As a result, Mr. F has retained you to advise him.

Here, the attorney's role is as advocate for the residents. It would seem that they reside in a facility that has failed to consider the ramifications of longevity and relative health increases in the aging population. Developing a knowledge base on residents' rights in nursing homes and ALFs is essential to the successful representation of your clients. Mr. and Mrs. F are a married couple, and the facility is denying them their fundamental rights as husband and wife. 42 C.F.R. § 483.10(m). As attorney for the couple you must investigate this alleged "policy" of the facility concerning denial of sexual intimacy rights. If, in fact, there is such a policy, it will be your duty to challenge the legality of such a policy, as well as to advocate for the individual rights of your clients to such activity.

Each of these cases illustrates the difficulties involved in determining a reasonable and proper course of action. Neither attitudes of moral outrage nor laissez-faire inaction will suffice. Yet, at the same time there is no inherently "correct" course of action, either. As attorneys, and as a society, we have started down a path into essentially uncharted territory. This territory is fraught with legal implications, moral dilemmas, and potential changes in social attitudes.

Baby boomers are beginning to make the transition from the dominant group in the work force to the dominant group in retirement. As they age, they will become the dominant force in ALFs and nursing home facilities as well. We, as attorneys concerned with our aging clients, must now begin to address the legal, moral, and philosophical questions concerning intimacy in this group. The solutions will not come easily.

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