46 Pages Posted: 10 Sep 2009 Last revised: 9 Oct 2012
Date Written: 2009
Intimacy and sex are important to the health and well-being of all adults, including elderly nursing home residents with dementia. To Be or To Exist: Standards for Deciding Whether Dementia Patients in Nursing Homes Should Engage in Intimacy, Sex, and Adultery, examines the practical problems confronting nursing homes when dealing with sexual relationships between nursing home residents with dementia and the various standards that could be used to determine whether individual relationships should be allowed to continue. As an example of the problems facing nursing homes, the article focuses on adulterous relationships between nursing home residents when the nonresident spouse objects. The issue of adulterous relationships is particularly topical because last year, former Supreme Court Justice Sandra Day O’Connor revealed that her husband, who has Alzheimer’s disease and is living in a nursing home, was having a romantic relationship with another resident in the home.
The article demonstrates that traditional standards used for making medical decisions for demented patients in nursing homes, such as substituted judgment and the best interests test, are inadequate for making decisions regarding intimacy and sexual relationships. Substituted judgment focuses on critical interests, or values held before the resident became incompetent, and does not adequately address the fact that values and circumstances change during the many years that a resident may live with dementia. Best interests focuses on the resident’s experiential or pleasurable experiences and ignores the values the resident created and nurtured while rational - values that may include religious convictions and loyalty to family.
This article proposes that nursing homes employ a new balancing test that takes into account the critical interests, or former values, held by the demented resident and also gives weight to the current experiential interests or needs of the patient for intimacy and sex. Unlike any former test, it also takes into account that critical interests may change with dementia because the demented patient may live for a long time.
Keywords: elder law, nursing home, dementia, sex, intimacy, adultery, Sandra Day O'Connor, Alzheimer's disease
Suggested Citation: Suggested Citation
Tenenbaum, Evelyn M., To Be or to Exist: Standards for Deciding Whether Dementia Patients in Nursing Homes Should Engage in Intimacy, Sex, and Adultery (2009). Indiana Law Review, Vol. 42, No. 3, 2009; Albany Law School Research Paper No. 15. Available at SSRN: https://ssrn.com/abstract=1470316