The fifth episode of the new Global TV series “Family Law”1 deals with family members who go to court to fight about who should be the attorney for personal care of Helen, the family matriarch. Helen suffers from Alzherimers. She resides in an assisted living facility and has struck up a sexual relationship with another resident. Helen’s husband, Ira, is fighting to stop the romantic relationship, for obvious reasons. Helen’s daughter wants her mother to be happy and therefore thinks she should be entitled to continue with her affair.
Given the format and the purpose of the show (to be entertaining), it’s not surprising that many of the issues addressed in a real court proceeding were missing from this show. There was no legal analysis of what constitutes sexual assault, nor the balancing of a duty to protect the vulnerable while respecting the right of the aged to personal autonomy in their decision making. While television writing has the flexibility to gloss over these issues, for lawyers and people who deal with them in real life, it’s important to examine the law.
The increase of sex among residents in nursing homes suggests that this issue might become more of a flash point.2 Charles Wagner of our office addressed this issue at his presentation at STEP Canada’s 20th National Conference on May 28-29th, 2018. He wrote:
Consider the following situation from the perspective of the decision-maker: An elderly mother has lived her entire life adhering to a religion that forbids sex outside of marriage. She appoints her son as her decision-maker. The mother develops dementia and is forced to live in a long-term care facility. While in the care facility, the mother begins having a sexual liaison with a man, despite the fact that she is still married. What are the rights and obligations of the son? Of the mother? In our hypothetical scenario, the son’s moral compass might be offended by the thought of his elderly mother having sex outside of marriage, or with someone other than her husband. However, if the mother is capable of consenting to sexual activity, it is beyond the son’s scope of authority to restrict that activity. Equally important, if mother does not have capacity to consent to sex, the son cannot consent on her behalf and might have an obligation to intercede.3
Using the fact scenario set out in the television show, the first question is whether it is a breach of fiduciary duty to permit the relationship to continue? The pivotal issue would be Helen’s capacity. If Helen was incapable of consenting to sex, then allowing it to happen is a crime.4 It is nothing short of sexual assault. Also missing was any real analysis of the legal duty of the decision-maker. Does the daughter’s failure to intervene constitute a profound breach of fiduciary duty? If Helen lacked the insight necessary to understand the information that is relevant to making a decision concerning having sex, it was incumbent on the decision maker to prevent further sexual encounters.5
Our laws governing the role of an attorney for personal care are set out in the Substitute Decisions Act.6 Section 66(4) makes it clear that decisions made on behalf of an incapable person must take into account that person’s “best interests”. The legislation outlines what needs to be taken into account when making that determination. One must balance previously held values and beliefs, current wishes, quality of life and any benefit the person will obtain as well as the risk of harm. It, therefore, behooves decision-makers and their lawyers to review the legislation when faced with these issues.
As my colleague Charles Wagner stated in his paper, “….it always boils down to capacity. Cases like Salzman v. Salzman and R v. Comeau stand for the proposition that a person must understand all of the potential consequences of engaging in sexual behaviour. Arguably, this might include the social, cultural and religious consequences of such behaviour. If the mother is no longer capable of understanding information that she would once have considered relevant to making a decision about sex, perhaps she is incapable.” If she is incapable then the attorney for personal care should intervene and, if necessary, apply to court for directions.
If you are dealing with any issues that resemble the ones raised in this blog, we recommend you contact a qualified lawyer for advice. Careful but swift action may be necessary. Do not be misled by the quasi-improvisational nature of the dramatic legal victories depicted on screen. Nothing replaces the advice and experience of a competent lawyer to deal with these situations.
- https://www.imdb.com/title/tt11873484/ ↵
- See Sex Among Residents in Nursing Homes Increasing https://www.verywellhealth.com/sex-in-nursing-homes-197767 ↵
- C. Wagner, B. Donovan and A. Pearl, “People of Faith and Substitute Decision-Making” (STEP Canada 20th National Conference, May 28-29, 2018) ↵
- Criminal Code, RSC 1985, c C-46, ss. 271-273.2. Also see Judith Wahl, Sex in LTC – Osgoode Elder Law Certificate Program 2017 ↵
- In Ontario, there is a statutory presumption that people 16 years of age or more are capable of giving or refusing consent to personal care, and this likely includes consent to sexual expression. The evidence to override this subsection must be very persuasive. As the court stated in Re Koch, 33 OR (3d) 485 at para 219, (1997) OJ no 1487 (QL): “Compelling evidence is required to override the presumption of capacity found in s. 2(2) of the SDA and s. 4(1) of the HCCA. The nature and degree of the alleged incapacity must be demonstrated to be sufficient to warrant depriving the appellant of her right to live as she chooses. Notwithstanding the presence of some degree of impairment, the question to be asked is whether the appellant has retained sufficient capacity to satisfy the statutes. ↵
- Substitute Decisions Act, 1992, S.O. 1992, c. 30 ↵