Legal Hurdles in Memory Care Communities
Operating a memory care community can present unique challenges, but with careful reflection, compliance and care can be enhanced.
James Henry
10/1/2017
Being a residential or assisted living property manager is a challenging role. There are a slew of unique issues that can arise that require immediate time and attention. Those issues are amplified when each resident has some form of dementia that can impact, among other things, memory, motor skills, and language.
What follows are discussion topics and recommendations that should be considered by property managers or operators of a memory care community.*
Capacity to Sign Agreement
As is taught in the first year of law school, there are multiple ways to potentially invalidate a contract. One way is for a party to lack the capacity to understand the nature and effect of the agreement. Of course, there are many exceptions and qualifiers to this general rule that must be considered before this contract defense is employed.
For example, in California, there are multiple definitions of “capacity” in the Probate Code. Common law must be considered as well for contractual disputes.
With this information in mind, it helps to apply it to a practical question. Does a diagnosis of dementia allow for an individual to unequivocally utilize the lack of capacity defense to invalidate an agreement (that is, residency agreement) he or she enters into with the memory care community operator?
That would probably be a no. The wide variety of cognitive levels of potential memory care residents would not allow this contract defense to be utilized universally. As much clarity as case law and statute attempt to shine on this topic, legal capacity is still an ambiguous area full of factual and subjective interpretations of words or behaviors.
One piece of advice is that 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. Keep 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 Saint Louis University Mental Status Examination (SLUMS) test.
A suggested best practice is to make sure there is an authorized representative of the memory care resident who also signs the agreement on behalf of the resident.
Discharge Notice Receipt
In the unfortunate event that a resident does not have the financial resources to remain at a certain memory care community or the resident’s needs exceed the licensure of the community, requiring the resident to transfer to a higher care level, the community is forced to issue a discharge notice pursuant to applicable state regulations and landlord tenant law. State regulations typically mandate delivery of the notice to the resident, the resident’s legal representative, or other applicable contacts and certain state agencies (such as Ombudsman, licensing).
Why would a senior living community be required to deliver a discharge notice to an elderly resident with a memory-based cognitive impairment who would not remember receiving it the next day? Because it is required by the plain language of the regulations. This is an issue that will need to be addressed by state legislators in the future.
The delivery of such a notice will likely upset the resident, who may be confused or unable to comprehend the purpose behind the notice. Regardless, multiple state agencies have confirmed that the notice still needs to be delivered. Make sure to note the date, time, and location of the delivery in the resident’s file to avoid any procedural arguments down the road.
Intimacy in Memory Care
Sex happens in memory care communities. Whether it is between two residents or a resident and their non-resident significant other, this is an issue that should be discussed at every memory care community.
The issue presented is similar to the previous discussion on capacity. This time it is in the context of an individual’s capacity to consent to sex or sexual contact. Does an individual diagnosed with dementia lack the capacity to consent to sex or sexual contact with another? The answer is unclear without a factual understanding of the situation.
What is clear and understood by operators is that a memory care community has an obligation to keep residents safe from harm or abuse. With that said, a memory care community should understand that dictating a resident’s sexual contact with another could be a resident’s rights violation, but failing to intervene in some instances could also be a safety or abuse concern.
So what can operators do?
- Discuss senior sexuality with care staff and provide additional staff training on dementia specifically geared toward sexual contact between residents;
- Produce clear policies on how sexual contact should be addressed, depending on each circumstance; and
- Discuss and educate family members or authorized representatives of residents who may not understand the balance of resident independence and resident safety that should be maintained in the context of sexual contact.
Theft, Missing Items
Theft of resident items has occurred in memory care communities. It is very sad to hear. When evaluating a claim of theft from a memory care resident or their family, make sure to consider past experiences and the resident’s condition during the investigation.
Misplaced items might be immediately labeled as “stolen,” even though the resident has a propensity for finding new “homes” for his or her valuables. Also, keep in mind that the theft occurred in a memory care community with residents who are experiencing different levels of a dementia-related disease. Theft of resident property by another resident can be an overlooked symptom of the disease.
Suggested best practices for this type of situation in a memory care community are: document everything, investigate thoroughly, and take all claims of theft seriously until proven otherwise. Further, encourage the authorized representative of a memory care resident to allow only limited amounts of available cash to the resident at one time, and urge them to properly insure high-value jewelry or personal items kept at the community.
*The information presented in this article is for informational purposes only and not for the purpose of providing legal advice. It is best to contact an attorney to obtain advice with respect to any particular issue or problem.
James Henry is staff counsel for Blue Harbor Senior Living. Blue Harbor is a national senior living management company based in Portland, Ore.