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  • Emerging areas in elder law: The growing need for prior consent for sex

Elder law is a broad focus that serves the legal needs of an aging population. The typical services of an elder lawyer center around ensuring that assets are transferred to family members on death according to the wishes of the senior, documenting choices relating to preferred treatment for end of life care, and securing benefits, such as Medicaid and VA pension to pay for the ever growing cost of long term care. Among these traditional areas of elder law, there are other issues developing as courts address the need to protect those who cannot protect themselves.
A case that garnered national attention last year concerned a man in Iowa who was charged with third degree sexual assault for having sex with his wife who was in a nursing home. The staff of the nursing home provided testimony that the man’s wife had severe dementia which impaired her ability to provide consent for sex. This case posed difficult questions for the jury. The prosecutor made an improper comparison of the women to a child that lacks the ability to provide consent. This comparison is faulty because, unlike a minor child who always lacks the ability to consent, an adult with dementia may have days or even hours of being lucid and able to communicate their desires. The jury found the husband not guilty on the charges, but he endured several months of trial which took a tool on him emotionally.
There is a discussion currently among elder law attorneys as to whether a document signed by the wife prior to her dementia would be effective in proving consent. The effectiveness of such document has not been tested in any Georgia court. The best course of action is for a married couple to openly discuss these issues with their families. While this conversation will be awkward, it will provide protection to the seniors should they lose competency.