21 Temple Political and Civil Rights Law Review, 459, 2012
26 Pages Posted: 20 Sep 2012 Last revised: 20 Nov 2012
Date Written: September 20, 2012
Nursing homes have difficulty dealing with intimacy and sex because they are central to life satisfaction and psychological well-being, but are also constricted by moral values and cultural expectations. This article focuses on the dilemma nursing homes face when the current wishes of the demented patient for an intimate relationship, expressed in words or behavior, conflict with the patient's prior values, such as fidelity to a nonresident spouse. In order to make the decision that is good for this person in the fullest sense, the nursing home must determine whether to follow the precedent values and advance directives of the patient or give priority to the current well-being and satisfaction the patient derives from the relationship.
This article briefly reviews the philosophical and legal arguments supporting the use of substituted judgment, best interests, and functional competence approaches to decision-making for incompetents and then explains why a balancing test is the best approach when dealing with intimate relationships among demented residents. The article also addresses the advantages and disadvantages of using advance directives to control future sexual relationships in nursing homes and discusses the challenges facing nursing homes in ensuring that gay and lesbian elders are provided the same opportunities for sexual expression and intimacy as other residents in the home.
Keywords: advance directives, nursing home, sex, intimacy, elderly, demented, dementia, Alzheimer's, elder law, LGBT, gay, lesbian, substituted judgment, best interests, functional competence, end of life, same sex, Nursing Home Reform Act, NHRA
JEL Classification: K32
Suggested Citation: Suggested Citation
Tenenbaum, Evelyn M., Sexual Expression and Intimacy between Nursing Home Residents with Dementia: Balancing the Current Interests and Prior Values of Heterosexual and LGBT Residents (September 20, 2012). 21 Temple Political and Civil Rights Law Review, 459, 2012; Albany Law School Research Paper No. 13 for 2012-2013. Available at SSRN: https://ssrn.com/abstract=2149841