Intimacy in communities catering to memory care residents is a fact of life. Whether between two residents or a resident and their non-resident significant other, this is a ‘hot’ issue that needs to be acknowledged and discussed.
Does an individual diagnosed with dementia have sufficient capacity to consent to sexual activity? Should dictating a residents sexual contact- or restriction- be a resident’s rights violation? Is failing to intervene a slippery slope into abuse or neglect waters?
One way for assisted or residential property managers to protect themselves is to have a legal representative of the resident sign the residency agreement on behalf of the resident. This might help protect against assertions that resident, whether current, new, or transferring in, has the legal capacity to understand and give consent on the residency agreement.
A medical diagnosis should be utilized in a senior living operator’s evaluation of whether a new or transferring memory care resident has the legal capacity to understand and sign the residency agreement.
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Bare in mind that there is no known medical methodology that is designed to definitively assess an individual’s legal capacity to enter an agreement. The legal capacity determination should be made in conjunction with a medical diagnosis and other supporting information, such as the SLUMS Test (Saint Louis University Mental Status Examination).