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Estate Planning: Your Family, Your Wealth, Your Legacy.

Let’s Talk About Sex: Dementia and the Elderly

May 15th, 2015 by Antoinette Bone

Most people do not want to think about,  let alone discuss,  the sexual habits of their parents.  For most people, the elderly are asexual beings.  They do not have physical desires.  However, if forced to look at the issue, all of us will come to the realization that the elderly do have sexual desires and do act upon them—I know this may be psychologically upsetting for those who do not want to think about their parent doing the do, especially if it is not with your other parent.

Dementia impacts people differently.  Some may become less inhibited in the expression of their sexual desires, while others may show no interest in sex at all.   One of the very unfortunate results of dementia within the context of a marital relationship is that the spouse with dementia may develop feelings and desires for someone not their spouse and act upon those feelings and desires.

The issue of sex among the elderly gets very complicated when you have a situation of spouses in a second marriage with children from previous relationships that have been made a guardian of the spouse with dementia.

Recently, there was a case in Iowa dealing with this issue.  Henry Rayhon the 78 year old husband of Donna Rayhon was recently on trial for sexual abuse.  Both Donna and Henry were previously married and had children.  Donna was diagnosed with Alzheimer’s.  Her daughters were made her legal guardians.  They decided to place Donna in a nursing home.  The Alzheimer’s diagnosis had no impact on Donna’s desire to continue to be sexually intimate with her husband.  However, there seemed to be disapproval of this activity.  At some point, Henry was told that his wife no longer had the capacity to consent to sexual activity with him but she still initiated it.

Capacity is a tricky issue.  In Alzheimer’s patients capacity can come and go.  Medical incapacity does not always mean legal incapacity.  Physical contact is very important for those who suffer with this disease.  Physical contact is a source of comfort.  To have the right to control your body removed is a significant loss of rights.  That has to be weighed against the potential for abuse and exploitation.  It is not uncommon for nursing facilities to not have a policy about this issue.

There are many questions raised by this situation:  How can the law effectively deal with the issue of intimacy for the demented elder?  What is going to be the capacity standard related to intimacy?  What is the capacity going to be to consent to sex when you have dementia?  How can a spouse or guardian deal with a married demented elder who falls in love with another in the nursing home and starts a relationship?

There is a great deal at risk for married couples who still have the desire for intimacy when one has an Alzheimer’s diagnosis.  First, if the spouse needs a guardian, the elderly healthy spouse is unlikely to be appointed the guardian.  This sets up a potentially antagonistic family dynamic when there are children from a previous relationship that do not get along with the healthy spouse.  The healthy spouse could lose access to the spouse with the Alzheimer’s diagnosis.  Is it always in the best interest of the ward to be denied the right to engage in sexual activity, particularly when it is with a spouse?

Aside from the legal issues, these questions go to the heart of marital relationships and family dynamics.  Children are not always aware of everything that goes on in a marital relationship.  Even with the best of intentions, they may not see the whole picture or may simply be unable to get beyond their own feelings about either the other parent or the step-parent.

There is no easy answer.  What is the capacity standard going to be to consent to sex when you have been diagnosed with Alzheimer’s?  How can the law protect the martial relationship from being damaged by a guardian who is not a spouse?

Mr. Rayhon was acquitted of the charge but the reason for his acquittal is unclear.  Was it because the jurors didn’t believe that he engaged in sexual relations with his wife on the day that was alleged in the criminal complaint or because based upon what was learned during trial they thought a husband should be able to have sex with his wife when she appeared to want it.

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