Incapacity and Sexual Relationships in the Elderly: Balancing Autonomy and Protection

Abstract

Older people enjoy the same freedom as other adults to enter into relationships, including sexual relationships. However, this exercise of autonomy and self-determination can be regarded as problematic when an older person is perceived to have lost the capacity to make decisions about sexual relations. While the law adopts an approach that is designed to support incompetent adults to continue to make decisions to the greatest extent possible,¹ carers and family members can become concerned about an incapacitated older person having sexual relations.² This may be because of fears of abuse or exploitation, or because of social or familial stigma about sex. Where the older person lives in an aged residential care facility (“resthome”³), carers or family may complain about sexual relationships, or even ask staff to prevent sexual contact from occurring.