Wednesday, September 2, 2015
Research shows that empowering individuals to actively participate in personal decision making improves life outcomes and can reduce the risk of abuse and exploitation. There is a risk of abuse and exploitation in all models of decision making for persons with differing abilities. An overly protective response to situations where a person with varying levels of capacity may be at risk can stifle self-determination and empowerment. Protection needs to be carefully balanced with protecting human and constitutional rights. Adults have a basic right to make choices, good or bad, and determine the course of their lives. An overly aggressive, or inappropriate protective response to limited capacity can itself be a form of abuse. This session will talk about recognizing the signs and signals of abuse, neglect (self-neglect) and exploitation, tools to maximize communication with persons with differing abilities, and promoting self-determination and choice through supported approaches that mitigate against risk and empower individuals. The session will explore the application of the Supported Decision Making model to assist persons in making choices, increase access to positive life outcomes, and reduce the risk of harm.
The webinar is free. To register click here.
Tuesday, September 1, 2015
While visiting in California this summer, I began following the dispute between University of California San Diego (UCSD), a public university, and University of Southern California (USC), a private university, over control of Alzheimer's research, originally known as the Alzheimer's Disease Cooperative Study. At first the outcome seemed predicted by judicial rulings favoring UCSD in a suit filed in San Diego courts. The most recent news coverage, however, suggests that what began with USC hiring away UCSD's top researcher, has continued with USC successfully luring away major funding. As reported in a San Diego Union-Tribune article:
While the La Jolla-based campus has so far won in court — with a Superior Court judge giving it continued control of the Alzheimer’s initiative — it is losing most of the contracts, money and trust of that program’s participants across the country.
USC said it has obtained eight of the project’s 10 main contracts after convincing sponsors that it is better suited to manage their clinical trials of experimental drugs and therapies for the neurological disorder. Those sponsors are defecting from the Alzheimer’s Disease Cooperative Study, or ADCS, and shifting to an institute that USC recently opened in San Diego....
UC San Diego confirmed the major setback, but said USC may be overstating matters by claiming that the contract transfers are worth up to $93.5 million. UC San Diego is still totaling its financial losses. Officials at the La Jolla school concede that they failed to tightly manage the Alzheimer’s program and allowed it to drift away from campus life. UC San Diego Chancellor Pradeep Khosla did not respond to requests for comment on the largest loss of research funding in the university’s history.
But campus officials said they are confident about rebuilding the Alzheimer’s program.
Pharmaceutical giant Eli Lilly was reported to be moving "millions" of dollars of research to USC control earlier this summer.
The USC Provost, while sounding very "corporate" in talking about USC's plans, is quoted as offering some consolation, with the possibility of working with UCSD in getting "back to being partners for better research."
Monday, August 31, 2015
The Pew Research Center on August 18, 2015 released the FactTank 5 facts about Social Security (the FactTank is "[r]eal-time analysis and news about data from Pew Research writers and social scientists."). So what are those 5 facts? Here you go!
Social Security touches more people than just about any other federal program.
Social Security is, and always has been, an inter-generational transfer of wealth.
Right now, Social Security has plenty of assets.
But since 2010, Social Security’s cash expenses have exceeded its cash receipts.
Social Security’s combined reserves likely will be fully depleted by 2034....
Friday, August 28, 2015
I had blogged previously about the White House Conference on Aging (WHCOA) and the topic of dementia-friendly cities. The Administrative for Community Living (ACL) is offering a webinar on September 1 at 4 p.m. edt on Dementia-Friendly Communities. The announcement describes the webinar:
Join the National Alzheimer’s and Dementia Resource Center for a webinar on creating communities that are safe and respectful, provide support, and work toward quality of life for people living with dementia and their families.
Webinar participants will learn about key concepts related to Dementia Friendly Communities and hear from community leaders putting these concepts into action.
The registration page is no longer taking registrations but hopefully there will be an archive of the webinar for those of us unable to attend. The National Alzheimer's and Dementia Resource Center was formerly known as the Alzheimer's Disease Supportive Services Program.
Thursday, August 27, 2015
Justice in Aging offers a very interesting examination of training standards for the broad array of persons who assist or care for persons with dementia, including volunteers and professionals working in health care facilities or emergency services. The series of 5 papers is titled "Training to Serve People with Dementia: Is Our Health Care System Ready?" The Alzheimer's Association provided support for the study.
The papers include:
- Paper 1: Issue Overview
- Paper 2: A Review of Dementia Training Standards across Health Care Settings
- Paper 3: A Review of Dementia Training Standards across Professional Licensure
- Paper 4: Dementia Training Standards for First Responders, Protective Services, and Ombuds
- Paper 5: Promising Practices-Washington State-A Trailblazer in Dementia Training
To further whet your appetite for digging into the well written and organized papers, key findings indicate that "most dementia training requirements focus on facilities serving people with dementia," rather than recognizing care and services are frequently provided in the home. Further there is "vast" variation from state to state regarding the extent of training required or available, and in any licensing standards. The reports specifically address the need for training for first responders who work outside the traditional definition of "health care," including law enforcement, investigative and emergency personnel.
If you need an example of why dementia-specific training is needed for law enforcement, including supervisors and staff at jails, see the facts contained in Goodman v. Kimbrough, reported earlier on this Blog.
August 27, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, August 26, 2015
Recently I was listening to satellite radio while on the road, and caught a Fresh Air interview with Robert Price, celebrated author of hardscrabble crime fiction, including Clockers (2008)and his most recent novel The Whites (2015). Is it my imagination, or are "older adults" appearing more and more often in mainstream fiction and movies? Apparently a central character in The Whites is just such an "senior." In Price's interview, I was struck by the humor of his observations about how growing older himself has influenced his writing, but also about much his grandparents' lives affected his fiction. And I couldn't help but laugh when he observed that no one likes the "math" as you get older, although he is now the first to admit that "65 is the new 64." Here's a link to the 44 minute podcast with Terry Gross.
Monday, August 24, 2015
In a recent guardianship case reviewed by the North Dakota Supreme Court, the alleged incapacitated person (AIP), a woman suffering "mild to moderate Alzheimer's disease and dementia," did not challenge the need for an appointed representative, but proposed two friends, rather than any relatives, to serve as her co-guardians. The lower court rejected her proposal, finding that a niece, in combination with a bank, was better able to serve as her court-appointed guardian/conservator.
On appeal, the AIP challenged the outcome on the grounds that the court had made no findings that she was without sufficient capacity to choose her own guardians. In The Matter of Guardianship of B.K.J., decided on July 30, 2015, the ND Supreme Court affirmed the appointment of the niece, concluding that although state law requires consideration of the AIP's "preference," no special findings of incapacity were necessary to reject that preference.
Contrary to [the AIP's] argument [State law] does not require the district court to make a specific finding that a person is of insufficient mental capacity to make an intelligent choice regarding appointing a guardian. While it might have been helpful to have a specific finding, we will not reverse so long as the district court did not abuse its discretion in appointing a guardian.... Here, it is clear the district court was not of the opinion [that the AIP] acted with or has sufficient capacity to make an intelligent choice. Rather, the district court's findings noted [she] testified that she did not trust [her niece] anymore, but was unable to recall why . . . .
Decisions such as these can be inherently difficult to manage, at least in the early stages, especially if the AIP is unlikely to cooperate with the decision-making of the "better" appointed guardian.
Thursday, August 20, 2015
The Washington Post ran an article about a recent study that people are now developing dementia at a younger age than in decades past. People are developing dementia earlier and dying of it more, a study shows discusses a study that was published in Surgical Neurology International. The Post story notes that the study was reported in the London Times in the story, Dementia Victims Are Getting Younger. The Post article notes that "[s]cientists quoted in the study said a combination of environmental factors such as pollution from aircraft and cars as well as widespread use of pesticides could be the culprit, the newspaper reported." The leader of the study was quoted:
The rate of increase in such a short time suggested a silent or even a hidden epidemic, in which environmental factors must play a major part, not just aging...[and] no single factor was to blame, but instead [the study leader] blamed the interaction between different chemicals and varying types of pollution.
Other experts disagree with the finding, according to the Post article, referencing the Times article. One expert noted that" death rates for cancer and heart disease could account for the spike in deaths from neurological disease since people 'had to die of something.'" Another expert was quoted that "[w]e can’t conclude that modern life is causing these conditions at a younger age....We know that Alzheimer’s and other dementias can have a complex interplay of risk factors.”
Tuesday, August 18, 2015
An interesting dispute is moving forward in federal court in California, involving interpretation of coverage under a long-term care insurance (LTCI) policy. The case is Gutowitz v. Transamerica Life Insurance Company, (Case No. 2:14-cv-06656-MMM) in the Central District of California. UPDATE: link to Order dated August 14, 2015.
In 1991, plaintiff Erwin Gutowitz purchased a long-term care insurance policy, allegedly requesting the "highest level of long-term care coverage available," and presumably paying the annual premiums for more than 20 years. Eventually, following a 2013 diagnosis of Alzheimer's, Erwin Gutowitz needed assistance, moving into an apartment at Aegis Living of Ventura, which was licensed in California as a "Residential Care Facility for the Elderly" (an RCFE). With the help of his son as his designated health care agent, he then made a claim for long-term care benefits under his policy. The claim was denied by Transamerica on the ground that the location was not a "nursing home" as defined in the LTCI policy.
Insurers understandably prefer not to pay claims if they can avoid doing so. In this case the insurer attempted to avoid the claim on the grounds that only certain types of facilities (or a higher level of care) were covered under this policy's "Daily Nursing Home Benefit."
On August 14, 2015, United States District Judge Margaret Morrow issued a comprehensive (34 page) order, copy linked above, denying key arguments made by Transamerica in its summary judgment motions.
August 18, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Sunday, August 16, 2015
The National Aging & Law Conference is scheduled for October 29-30, 2015 at the Hilton Arlington, Arlington, VA. A number of ABA commissions and divisions are sponsors of this conference including the Commission on Legal Problems of the Elderly, the Coordinating Committee on Veterans Benefits & Services, the Senior Lawyers Division and the Real Property, Trust & Estate Law Section. The website describes the conference
The 2015 National Aging and Law Conference (NALC) will bring together substantive law, policy, and legal service development and delivery practitioners from across the country. The program will include sessions on Medicare, Medicaid, guardianship, elder abuse, legal ethics, legal service program development and delivery, consumer law, income security, and other issues.
The 2015 National Aging and Law Conference marks the second year that this conference has been hosted by the American Bar Association. This year’s agenda will include 24 workshops and 4 plenary sessions on key topics in health care, income security, elder abuse, alternatives to guardianship, consumer law, and legal service development and delivery. The focus of the agenda is on issues impacting law to moderate income Americans age 60 and over and the front line advocates that serve them.
August 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Programs/CLEs, Social Security, Veterans | Permalink | Comments (0)
Friday, August 14, 2015
At the 2015 White House Conference on Aging on July 13, 2015, during the discussion from the first panel on Empowering All Generations: Elder Justice in the Twenty-First Century, one panelist from Minnesota mentioned dementia-friendly communities and the Dementia-Friendly America initiative. Six cities were mentioned as examples. Minnesota has a website that offers many tools on making a community dementia-friendly or dementia-capable. A dementia-capable community is "[a] dementia capable community is informed, safe and respectful of individuals with the disease, their families and caregivers and provides supportive options that foster quality of life." The toolkit is available here.
Monday, August 3, 2015
The Administration for Community Living (ACL) has posted a new report on its website. The July 2015 report was prepared by RTI International pursuant to a contract with ACL. The report is titled IDD and Dementia. The executive summary explains in part:
The National Plan to Address Alzheimer’s Disease (2014) calls for a coordinated effort to develop workforces in aging, public health, and intellectual and developmental disabilities that are dementia-capable and culturally-competent. In response to this directive, the U.S. Administration on Community Living presents the findings and resources in this white paper to community of providers who primarily serve older adults. It provides a broad overview of the services and support system for persons with intellectual and developmental disabilities (IDD) affected by dementia and their caregivers, examples of cross-network initiatives, and resources for improving dementia care across agencies and organizations that serve this population.
This white paper presents the current state of services and support system for persons with IDD who have dementia. There is recognition in the aging and IDD networks that states are in a transition period where the future of services will be more person-centered and focused on integration in the community (see Appendix A).
The report is divided into 9 sections with section 4 looking at screening, diagnosis and treatment; section 5 looking at services and financing; and section 6 looking at efforts to improve community-based services. Section 7, the conclusion, includes a brief discussion of 5 issues:
Is dementia awareness education available to the IDD population and service providers?
Do the information and assistance services in both the aging and IDD networks identify those individuals with IDD and dementia and their caregivers who contact them?
Are persons with IDD and dementia being referred for appropriate diagnosis?
Are program eligibility and resource allocations taking into account the impact of cognitive disabilities on an aging population of persons with IDD?
Are the dementia-capable home and community-based services available to the general population capable of serving persons with IDD and dementia?
The report is available here.
Thursday, July 30, 2015
As detailed in new stories in Southern California media, an important suit by University of California San Diego (UCSD) against University of Southern California (USC) highlights a battle between public and private research enterprises. Control over millions of dollars is stake for Alzheimer's-related research. From the San Diego Union-Tribune in a Sunday feature article by Larry Gordon, Gary Robbins and Bradley Fikes:
In the lawsuit, U.C. San Diego alleges that USC, [Alzheimer's researcher Paul] Aisen and eight colleagues conspired to take research data involving more than 1,000 patients and other assets, including an estimated $100 million in federal and private funding to a new Alzheimer's study center in the San Diego Area. Aisen and USC deny any wrongdoing and contend that UC San Diego is trying to inhibit the freedom to move jobs and is threatening the data's security.
A Superior Court judge in San Diego last week denied USC's request to block UC San Diego's access to that data.
Richard Seligman, the associate vice president for research administration at Caltech who has more than four decades of experience dealing with grants, said he had never heard of such a lawsuit even though competition for grants and noted faculty has gotten more fierce.
Stakeholders interested in the outcome of the research are reported to be taking note of the suit, with Mary Carrillo, the chief science officer for the Alzheimer's Association quoted as saying the association wants a "speedy resolution" of the lawsuit to keep research going forward.
Left in an uncomfortable middle ground are the National Institutes of Health and its subsidiary National Institute on Aging, which provides about $11 million per year to the UC Alzheimer's Center. While confirming that UC San Diego still holds that grant, officials at those agencies said they must approve whether funding like that stays put or moves to another school with a principal investigator like Aisen.
For additional background on the lawsuit, see a related Los Angeles Times piece here. Reporters from the Los Angeles Times and the San Diego Union-Tribune have collaborated on these stories.
On Friday, July 24, a California trial court ruled that the key research data must be returned to UCSD and therefore does not go "with" the faculty member, Aisen, recruited away from San Diego by USC. Details here.
As further evidence of the battle for primacy in southern California medical research, USC and UCSD have each courted the La Jolla Institute for Allergy and Immunology, with University of California-San Diego energing as the winning suitor for "affiliation." Details here.
Sunday, July 26, 2015
With just a few weeks left before law school classes start again, I hope your summer writing and research projects are well underway, giving you time to relax a bit with a good beach read. I've got one to recommend, too. It's Dry Bones in the Valley by Tom Bouman.
The mystery is set in northeastern Pennsylvania, where old time music haunts the air, mixing with the off and on whine of modern day fracking. One of my favorite authors is Tana French, whose Dublin-based "police procedural mysteries" are an excuse for deep exploration of the human condition. Tom's debut novel is in that tradition, even bringing to bear an Irish spirit or two. I like it best when I can see, hear and "feel" the settings in a novel, as in this passage, where bone-tired Henry Farrell struggles to find balance while carrying out his official duties as the rural township's investigator:
I knew I wouldn't sleep and likely shouldn't with my head the way it was. Went back inside, got out my fiddle, and rosined the bow....
I needed something I could rip into. "Bonaparte's Retreat" found me. . . . By the time I got to the modified part B Copland had made so famous, I had to stop and breathe. I thought of George Ellis. Got a piece of paper and curled it into a funnel, poured the rest of my whiskey back into the bottle, and went to bed, but never to sleep.
It's not hard to get up if you never go down. Dawn brought a hint that the weather might get clearer. With enough pain pills, my head would too. The eastern sky was bright as a wild rose as I walked stiff-backed from my woodpile with an armload for the stove. The snow had melted, and my boots left prints on a field that, newly bared, crackled underfoot and shimmered silver; it was a beauty that would not last another ten minutes, so I dropped the firewood and stood and watched the night's frost dissolve into morning mist. Somewhere in the tree line, a bluebird burbled a tune, but I couldn't pick him out. It was the first songbird I'd heard that spring....
Strong writing, yes? But, how does this particular book relate to the Elder Law Prof Blog? Well, as you may have come to expect from me by now, one reason is a central character in the mystery, ol' Aub, may -- or may not -- be too old to remember the truths of what happened.
Another reason is the author is a current Penn State Dickinson law student, and his new book has already earned a 2015 Edgar Award for best first novel and a 2015 Los Angeles Times Book Award for best mystery/thriller.
Friday, July 24, 2015
From the ABA Bifocal, details about the 2015 award of a $50k grant by the Huguette Clark Family Fund for Protection of Elders to develop model civil statutes covering elder financial exploitation:
The project will be managed by the National Center for Victims of Crime under the guidance of Executive Director Mai Fernandez. Lori Stiegel of the American Bar Association Commission on Law and Aging will serve as a consultant on the project. Ms. Stiegel, a senior attorney, joined the ABA Commission in 1989 and has developed and directed its work on elder abuse.
“Creating a template of civil statutory provisions for elder financial exploitation is a short- term, innovative project that can have a lasting impact,” Ms. Fernandez said. “It can give attorneys an effective tool for pursuing civil cases and provide victims with the greatest chance to recover stolen assets. We welcome the support of the Huguette Clark Family Fund for Protection of Elders on this important project.”
The news release explains the donor-advised fund was established by the family in 2013 to honor the late Huguette Clark, "who was victimized by her caregivers for more than two decades." Previous recipients of grants from the Huguette Clark Fund include San Diego State University and the Philadelphia Corporation on Aging.
July 24, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Grant Deadlines/Awards | Permalink | Comments (0)
Professor James T.R. Jones continues to bring his unique and important perspective to bear in his latest work available on SSRN. In Abuse of Elders with Mental Illness: Generally an International and Specifically a United States Perspective, he highlights the ways in which various types of mental illness may contribute to unique vulnerability to abuse as the individuals age. This is a chapter from a new book, International and Comparative Law on the Rights of Older Persons edited by Ralph Ruebner, Teresa Do and Amy Taylor published by Vandeplas Publishing in May 2015. From the SSRN abstract on Professor Jones' chapter:
Elder abuse is a major international problem, and scandal. It is so important that both the United Nations (“UN”) and the World Health Organization (“WHO”) have focused on it. Elder abuse occurs in a variety of ways. It can be physical abuse due to either active injury or passive neglect. It can be psychological abuse through fear and intimidation. It can be financial abuse due to theft or fraud. Abusers can be strangers; healthcare workers, too often in nursing home settings; and spouses, partners, children, grandchildren, or other relatives. Abusers may be motivated by cruelty, laziness, or greed for quick profit or a premature inheritance.
While all elders can be abused, those with mental illness are particularly vulnerable. This group can encompass both those with longstanding mental illnesses such as major depression, schizophrenia, and bipolar disorder and those psychiatrically debilitated by age, notably including those who suffer from Alzheimer’s disease or other forms of dementia. Victims may be living in private residential settings both alone and with family or friends or in institutions such as nursing homes.
This chapter gives a brief overview of elder abuse and then focuses on the victim population of those vulnerable because of mental illness and how they face abuse. It discusses possible ways to reduce the incidence of abuse of those with psychiatric conditions including, among other things, mandatory abuse reporting and enhanced focus on the problem by government, in particular law enforcement, authorities and primary care and mental health care providers.
The book is another important product from John Marshall Law's summer 2014 forum examining the rights of older persons, leading to the summer' "Chicago Declaration on the Rights of Older Persons" presented before the United Nations' working session on aging.
Wednesday, July 22, 2015
The Law Society of England and Wales recently issued a "Practice Note" for lawyers (or rather, "solicitors") on representing vulnerable clients, including but not limited to clients with dementia. The guideline reflects research that demonstrated "solicitors need to adapt their practices to identify and meet the needs of vulnerable clients." The guide recognizes that "vulnerable" clients may include a range of persons, and may involve physical or mental capacity issues of varying degrees.
The guide warns that failure to "meet the needs of a vulnerable client" may trigger:
- A discrimination claim or a claim for a failure to make reasonable adjustments under the Equality Act 2010, which could result in sanctions including damages.
- A claim for damages or compensation against you or your firm if you act on the instructions of a client lacking capacity to make relevant decisions, having failed to satisfy yourself as to the client's capacity to instruct you or failing to document your assessment of the client's capacity, leaving the validity of the transaction open to challenge.
- A complaint against you to the Legal Ombudsman, which could result in your name being published and/or you having to pay financial compensation. The ombudsman will refer complaints about discrimination to the SRA.
- Reputational risk - your practice's reputation is inextricably linked to the way in which you treat your clients. Conversely, a practice with an inclusive ethos will not only attract a wider group of clients but also a more diverse workforce bringing benefits to the business.
The guide has a detailed discussion of mental capacity issues, including the attorney's need to consider the following four factors:
Tuesday, July 21, 2015
A new book from the U.K. by June Andrews is titled Dementia: The One-Stop Guide, and it offers practical advice for families, professionals, and people living with dementia and Alzheimer's Disease. The Table of Contents suggests the scope:
- What is dementia?
- Getting a diagnosis
- Adjusting to the news: for carers
- Adjusting to the news: for people with dementia
- What are friends for?
- Managing care at home
- Disturbing Behaviours
- Your dementia-friendly home
- What you should expect from the social care system
- What you should expect from the NHS
- The dangers of a hospital admission and how to avoid them
- Some important legal issues
- What to look for in a care home
- Advice on complaints and sample letter
I wonder how Chapters 9 and 10 would be written from a U.S. perspective?
July 21, 2015 in Books, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, International | Permalink | Comments (0)
Monday, July 20, 2015
The Administration for Community Living (ACL)/Administration on Aging (AoA) announced an upcoming webinar, People Who Live Alone with Dementia. The webinar is offered by the National Alzheimer’s and Dementia Resource Center (formerly the ADSSP National Resource Center). The website describes this July 30th webinar as follows:
The webinar will focus on the issue of Persons Living Alone with Dementia. Participants will learn about prevalence and characteristics of people with dementia who live alone, signs of self-neglect and intervention strategies, and the experiences of people with dementia who live alone. Dr. Penny Harris and Dr. Michael Lepore will present at this webinar.
The webinar starts at 3 p.m. edt and lasts for one hour. To register for this free webinar, click here.
Professor Alexander Boni-Saenz at Chicago-Kent College of Law recently emailed me about his forthcoming article, Sexuality and Incapacity. The article is posted to his SSRN page and will be published in volume 76 of the Ohio State Law Journal. The abstract explains
Sexual incapacity doctrines are perhaps the most important form of sexual regulation, as they control access to sex by designating who is legally capable of consenting to sex. Most states have adopted sexual incapacity tests for adults that focus narrowly on assessing an individual’s cognitive abilities. These tests serve an important protective function for people with temporary cognitive impairments, such as those rendered incapable due to alcohol or drugs. However, this comes at the cost of barring many people with persistent cognitive impairments, such as Down Syndrome or Alzheimer’s Disease, from any sexual activity. This is despite the fact that they still have sexual desires and are able to engage in sexual decision-making with support from caregiving networks. The central claim of this Article is that sexual incapacity doctrine should grant legal capacity to adults with persistent cognitive impairments if they are embedded in an adequate decision-making support network. In other words, the right to sexual expression should not be withheld due to cognitive impairment alone. To justify this claim, the Article provides a theory of sexual incapacity doctrine that is grounded in the practice of supported decision-making and the normative foundations of sexual capability and relational autonomy. The Article then sets forth a novel test for sexual consent capacity: cognition-plus. This test focuses on gauging the capacity for volition, assessing the mental capacity of the individual to understand the nature and consequences of the sexual decision, and evaluating the adequacy of the decision-making support system using principles of fiduciary law. The Article concludes by applying the cognition-plus test to the case of older adults with dementia, a group of increasing importance with the aging of the population.
A draft of the paper is available as a pdf from the SSRN page of Professor Boni-Saenz. Thanks to Professor Boni-Saenz for letting me know about his article!