As the population lives longer, we face critical decisions in caring for our elders. More than 34 million people are now 65 or older – 13 % of the total population of the United States. The percentage of people over age 65 will increase rapidly over the next few years as the ” baby boom” generation reaches 65. Sadly, the fastest growing segment of our population – elders over 85 – have the highest risk of Alzheimer’s disease. By 2050, 14 million older Americans are expected to have Alzheimer’s disease. In fact, researchers recently projected that the number of new cases every year will double between 1995 and 2050 – from 377,000 to 959,000 – if current population trends continue and no preventive treatments emerge!
These developments raise some serious halachic concerns:
Contemporary secular medical ethics espouse the doctrine of patient autonomy, which declares that every individual with capacity has the right to make medical decisions for himself. One may express his or her preferences in advance (advance directives) to accept or refuse various medical interventions through a living will or health-care proxy.
When medical decisions must be made, physicians must fully inform competent patients or their proxies (if they no longer have capacity) of their treatment options (informed consent), and discuss with them the risks and benefits of the various alternatives and the possible outcomes/consequences of their
Director of Pastoral Care at the Gurwin Jewish Geriatric Center, Commack, Long Island, and a Senior Fellow at the Institute for Medicine in Contemporary Society at SUNY, Stony Brook
decisions. Patients may then decide to undergo high-risk medical treatments that promise some hope for recovery, or refuse life- support interventions in certain circumstances. While halacha does not view patient autonomy as an absolute right, it would, under certain conditions, respect the wishes of patients to make these critical decisions within halachic guidelines. Against this backdrop, we must probe a number of questions:
Would halacha consider an Alzheimer’s patient to be a shoteh (mentally deranged/halachically incompetent), and, if so, at what stage?
Once an individual is no longer able to care for himself, his family faces some agonizing decisions: Should they place him in a long-term care facility, where he will be cared for in a safe and secure environment? As children, are they abdicating their responsibilities to “honor thy father and thy mother,” when they place their parents in the care of others? Does the Torah expect children to personally care for their chronically ill parents at home, regardless of the financial expense or emotional toll?
Lastly, are individuals with dementia or Alzheimer’s obligated to perform mitzvot? For example, would a man still be obligated to don tephillin each weekday morning? Would he be counted in a minyan? Would a woman still be obligated to eat matzoh at the Seder or listen to the megillah?
I. Advance Directives
An advance directive is a legal document that is drafted to express one’s wishes for medical care if he or she no longer has capacity to make those decisions. These decisions concern whether to accept or deny certain medical treatments, including, among others: pain control, resuscitation, artificial nutrition and hydration, organ donation, and appointing an agent to make decisions on one’s behalf. It is an important document to have at any stage of one’s life, but particularly for elders who
become increasingly vulnerable to health problems in their later years. Without an advance directive in place, some of the most critical decisions affecting one’s life would be left entirely in the hands of medical professionals, or family members who may be completely unaware or unsure of the principal’s wishes.
It seems abundantly clear from the literature that in the early stages of dementia or Alzheimer’s, many elderly patients will have the requisite capacity to express their wishes in advance directives. This underscores the need for these patients and, indeed, all elderly individuals to appoint health-care proxies and discuss their advance medical directives with them while they still have the ability to do so… The fact that there are many individuals who do not have advance directives on file is particularly distressing because research indicates that hospital- based physicians showed a remarkably improved ability to make treatment decisions aligned with patient wishes when advance directives, or “living wills”, were available. In fact, with living wills, their decisions about patient care improved to a level better than decisions made by the primary care physicians. Their treatment choices were almost as accurate as decisions made by family members. Researchers noted that advance directives improved decisions by physicians in emergency rooms and on critical care areas to a level of someone well acquainted with the patient.1
In order to execute an advance directive, an individual must have the capacity to make those decisions and be able to weigh the benefits and risks of various treatment alternatives,
- Coppola KM, Danks JH, Smucker WD, “Accuracy of primary care and hospital-based physicians’ predictions of elderly outpatients’ treatment preferences with and without advance directives,” Archives of Internal Medicine 2001; 161:431–440.
and the consequences of refusing treatment altogether. As dementia or Alzheimer’s progresses, patients will eventually lose capacity to make their own medical decisions. At what stage of his illness does he still have sufficient capacity to make competent decisions? For example, does he comprehend the fact that refusal to accept a feeding tube could result in his death? When he is suffering from peripheral vascular disease, and amputation of his leg offers him a low-risk – high-benefit treatment alternative, does he fully understand the consequences of his refusal? Ultimately, would his decision reflect a truly autonomous choice – uncolored by depression and progressive dementia? In halacha, at what point would he be deemed a shoteh (lacking mental capacity) and become legally unfit to make any decisions?
Capacity in Cognitively Impaired Elders – The Research
In early and mid- stage dementia and Alzheimer’s, it is often difficult to assess whether patients genuinely understand treatment alternatives and can weigh their respective risks and benefits. Often, these patients may be able to converse comfortably about topics with which they are familiar and compensate socially for many of their memory and cognitive deficits.2
In order to assess a patient’s capacity to make medical decisions, many studies indicate various common criteria or legal standards.3
- “Many individuals in the early stages of dementia or with mild delirium maintain a successful social façade, and their impairment may not be apparent on superficial ” Volicer L, Ganzini L: “Health professionals” views on standards for decision-making capacity regarding refusal of medical treatment in mild Alzheimer’s disease,” Journal of the American Geriatrics Society 2003; 51:1270.
- Marson DC, Earnst KS et al: “Consistency of physicians’ legal standard and personal judgments of competency in patients with Alzheimer’s disease,”
One of the most widely used standardized tests to evaluate cognitive mental status is the Mini Mental State Exam (MMSE). It is a brief 30-point exam which assesses orientation, attention, immediate and short-term recall, language, and the ability to follow simple verbal and written commands. The MMSE provides a total score that places the individual on a scale of cognitive function. As might be expected, when individuals age, their median scores declines – from a median of 29 for those 18 to 24 years of age, to 25 for those who are 80 years and older, with much lower scores correlating to the degree of dementia. Recent findings conclude that the standardized MMSE is a good measure for classifying capacity to complete an advance directive; however, it is not adequate to measure legal competency.4 Indeed, when considering the MMSE and other specialized instruments to measure capacity in the cognitively impaired, one important study concludes:
“Rarely is incapacity absolute; even people with impaired capacity usually possess some ability to comprehend, to communicate, and to form and express a preference. Thus, many older people are capable of understanding some things but incapable of understanding others. Persons with demented illness are often assumed, inaccurately, to be generally or globally decisionally incapacitated. The results of this research and that of others suggest that carefully screened persons with mild, moderate, and even severe dementia
Journal of the American Geriatrics Society 2000; 48:913 See also Volicer, op.cit. 51:1271 for two earlier standards of competency— Grisso et al (1998) and Drane (1984).
- Molloy DW, Silberfeld M et al, “Measuring capacity to complete an advance directive,” Journal of the American Geriatrics Society 1996;44:1-4 and Marson DC, Chatterjee A et al, “Toward a neurological model of competency: cognitive predictors of capacity to consent in Alzheimer’s disease using three different legal standards,” Neurology 1996;46:666-672.
are able to demonstrate capacity to make some decisions, including the execution of a health-care proxy.”5
Capacity in Cognitively Impaired Elders – Halachic Sources
Are there any tests or assessment protocol to determine capacity, according to halacha? The late bioethicist, Benjamin Freedman, draws a fascinating analogy from passages in Tractate Gittin and relates them to contemporary competency standards:
The Mishnah (67b) records:
One who became speechless [lit., nishtatek; in contemporary Hebrew usage this connotes a stroke or paralysis which affects speech] and they said to him, “Let us write a divorce document for your wife,” and he inclined [lit., v’hirchin, which connotes nodding to indicate consent] his head, we examine him three times: if he responds to – “no”–”no” and to – “yes” – “yes”, then they may write it and deliver it.
The Gemara (70b) elucidates:
Should we suspect [when he nods his head repeatedly to a series of successive ‘”yes” or “no” questions] that he might be suffering from a tremor? 6
R’ Yosef bar Manyomei said, “We speak to him at intervals (that is, “delaying a bit before we repeat the
- Mezey M,Teresi J et al, “Decision-making capacity to execute a health- care proxy: development and testing of guidelines,” Journal of the American Geriatrics Society 2000; 48:187.
- Rashi comments: “A disease of madness, which trains/habituates him to always shake or nod his head, and he does not respond appropriately to the questions they are asking.” Neurologically, this husband may be suffering from Parkinson’s or another palsy, which causes involuntary
very same question” – Rashi). Should we suspect [when he repeatedly shakes or nods his head in the same direction] that his tremor is following a pattern?We ask him one ‘no’ question followed by two ‘yes’ questions and two ‘no’ questions followed by one ‘yes’ question.”
They learned in R. Yishmael’s school: “They speak to him about matters which are appropriate to the summer season during the rainy [winter] season, and matters which are appropriate to the winter season during the summer. What does this mean? Are we referring to [questions about] a woolen blanket [during the summer] and linen sheets [during the winter]? Perhaps, then, [during the summer], he was shivering [lit., “seized by cold”] and [during the winter], he was perspiring [lit.,”seized by heat”]?”7
The passage seems reminiscent of a scientific experiment, to answer the question: Is the husband intentionally communicating through head movement? The reliability of the study is established through replication: The test is done three times. The experimenter wishes to control for, or to eliminate, confounding variables such as intermittent tremor, and so manipulates the experimental design in terms of timing and variation of appropriate response. Communication, whatever its form, contains
two elements: pattern and repetition.. The first colloquy. satisfies the need for repetition, but not for
patterning; it is possible that this apparent indication is simply an intermittent but natural recurring
- Rashi comments: “…perhaps he is shivering during the summer season and even when he responds affirmatively about woolen blankets, he is not mentally incapacitated [lit., a shoteh].
phenomenon. The element of patterning is supplied
by asking a series of questions that should yield staggered, alternating responses, no-yes-yes-no-no-yes: “We ask him one question of no, and two of yes, and two of no, and one of yes.” We have now demonstrated, through patterned repetition, that the phenomenon observed is meaningful. However, for it to constitute communication, it needs to be decodable into a language understood in common by both parties… This is the contribution of the school of Rabbi Yishmael: “They speak to him of summer matters during winter [the rainy season], and of winter matters during summer.”
The same principles apply, of course, today. Some patients with profound paralysis retain the ability to communicate solely through blinking. With them, the first task is to ensure that their blinking is meaningful, and similar forms of patterned repetition in yes/no questions are employed to this end. The second task, ensuring a common language, is tested when we examine to see whether a patient remains oriented to time, place, and person.8
What, indeed, is the halachic criterion to determine legal incapacity? Is it global, meaning that the incapacitated individual lacks competency to make any decision, including advance directives, or is it decision-specific? We are familiar with the halachic principles relating to a mentally deranged or insane individual – shoteh: he or she is exempt from mitzvah
- Benjamin Freedman, Duty and Healing: Foundations of a Jewish Bioethic, London:Routledge, 1999,pp., 207- 212. Interestingly, the MMSE (Mini-Mental State Exam) and the Western Aphasia Battery include questions which test for patterning and orientation to person, place, and time, much like the talmudic
obligations and cannot legally transact a purchase or a sale.9 Would an individual suffering from dementia or Alzheimer’s be considered a shoteh at some stage? Would such an individual, who has recurrent moments of lucidity be treated as having capacity?
Seemingly, lucid moments are significant in keeping with the talmudic dictum:
One who has moments of lucidity and moments of insanity, when lucid is considered normal in every respect, and, when insane is considered insane in every respect.10
The primary source for our wide-ranging inquiry is the passage in Chagigah 3b:
Our Rabbis taught: Who is [deemed] insane? One who goes out alone at night [risking personal danger], and sleeps overnight in the cemetery, and rips his garments. It was taught: Rabbi Huna said, “He must do all three [to be deemed insane].” Rabbi Pappa said, “Even one of them.”
What is the case? If he acted irrationally, then even one of these incidents would be symptomatic (of insanity). If he acted rationally (i.e., there are rational explanations for his erratic behavior), then even all these incidents would not be symptomatic. Actually, he acted irrationally [“and, nevertheless, we do not consider him (to be insane) on the basis of one occasion,” Rashi notes, because each incident, by itself, may have a rational explanation]: He sleeps overnight in the cemetery, I might say, so that the spirit of impurity will possess him. He
- Rashi, Chagigah
- Rosh Hashanah
goes out alone at night, I might say, because he is seized by melancholy. And he rips his garment, I might say, because he is preoccupied with his thoughts [and apparently tears it unwittingly]. Thus, since he does all [three of] these things, he is likened to an ox who has gored an ox, donkey, and camel and has become a muad [demonstrating an established pattern of culpable conduct] in every respect. Rabbi Pappa said, “Had R. Huna heard that which is taught: ‘Who is [deemed] insane? He who loses everything that is given to him…’, [“that for one erratic action he is deemed insane,” Rashi, ad. loc.] he would have retracted his opinion…”
Rambam attempts to define shoteh and other forms of mental illness in terms of their validity to render testimony:11
An insane individual is biblically disqualified from rendering testimony because he is exempt from mitzvot. Not only is he [considered to be] insane when he walks around naked, destroys articles, and throws stones, but anyone who is mentally deranged so that his judgment is always impaired in any matter, even though he speaks and responds appropriately in other matters, is disqualified and categorized as insane.
Extremely “retarded” people who do not recognize [obvious] contradictions and cannot comprehend matters the way others [normally] do, as well as those who are mentally confused and impulsive and those who are extremely crazed are categorized as “insane.” The determination [of their psychological status] is in accordance with the judge’s evaluation, since it is impossible to delineate mental [status] in print.12
- Mishneh Torah, Edut 9:9,10.
- For contemporary definitions of various rabbinical designations for
Rambam’s declaration that “… anyone who is mentally deranged so that his judgment is always impaired in any matter, even though he speaks and responds appropriately in other matters, is disqualified and categorized as ‘insane’” – evokes much controversy. Is Rambam’s intent to categorically disqualify an individual who functions normally in every aspect of his life, except one, even in those areas where his behavior is perfectly acceptable? On the surface, it appears that Rambam sees this individual as globally impaired, and he is ” disqualified and categorized as ‘insane’ ” across the board. Yet, if this be the case, why does Rambam belatedly introduce this concept when he discusses the laws of testimony in his Mishnah Torah, rather than in his earlier treatments of certain marital and civil laws?
The T’vuot Shor understands that the Rambam classifies an individual who does not function normally in one area of his life as being globally impaired even in other areas where he speaks appropriately.13 He posits that there are many mentally ill individuals who are able to speak coherently, but, nevertheless, their occasional actions, in effect, speak louder than words. Me’erot Aynaim echoes his opinion and asserts
mental illnesses, see Rabbi Y. Zilberstein’s article, “The status of the mentally ill,” Emek Halakha-Assia 5746 (1986) pp. 189-201. For example, peti, typically translated as “simple” (e.g., “God protects the simple – Psalms 116), R. Zilberstein defines as “retarded.” He understands the term, nechpazim to refer to an impulse disorder, citing Me’erot Aynaim (22): ” It appears that they are individuals who are not deliberate in their matters, but act hastily and do not comprehend the ultimate purpose (consequence) of their actions…” Rabbi Hershel Schachter, based on the responsa Zichron Yosef (cited in Yad Avraham to Yoreh Deah 1:5) offers different definitions for these halachic terms: a peti is not a retarded individual, but rather one who is somewhat immature and silly; accordingly, he is deemed to have capacity (bar da’a t) and, technically, could be counted in a minyan were it not a matter of kavod hatzibbur – respect for the integrity/dignity of the congregation. However, a deaf mute, who is unable to hear or speak and cannot be educated, would be regarded in halacha as seriously retarded, and treated on a par with a shoteh, whose behavior is psychotic.
- Yoreh Deah
that even if this individual is intelligent and speaks logically and cogently, he is still considered to be “insane” if there is any area where his psychological status affects his capacity to make sound decisions.14
Rabbi Moshe Feinstein, however, asserts that one’s insanity is restricted exclusively to the one area of his life where his behavior is abnormal; in other areas where his behavior is completely appropriate, he is deemed to be normal. Consequently, in those areas where he is functioning normally, his statements and actions are regarded as legally binding. Even Rambam who declares “…anyone who is mentally deranged so that his judgment is always impaired in any matter, even though he speaks and responds appropriately in other matters, is disqualified and categorized as ‘insane’…” does not mean that he has lost capacity to make decisions in every area of his life. Rabbi Feinstein offers an original interpretation to demonstrate that Rambam is not addressing the issue of his legal capacity, but rather his ability to render acceptable testimony.
Rabbi Feinstein posits that an individual whose behavior is abnormal in one area of his life may not be globally impaired: he may fully engage in transactions, empower agents to act on his behalf, and even issue a divorce to his wife! However, Rambam disqualifies this individual from rendering testimony for an altogether different reason: “An insane individual is biblically disqualified from rendering testimony because he is exempt from mitzvot. Testifying in court is a mitzvah obligation. Rabbi Feinstein reasons that just as a minor is legally exempt from all mitzvot, even those in which he may have the ability to participate, so, too, an insane individual is exempt from all mitzvot – across the board – even those in which his behavior is clearly normal. This explains why Rambam waited until the
- Choshen Mishpat 35:26.
laws of testimony to define insanity, rather than discuss it earlier in the laws regarding transactions and divorce.15
Contemporary Applications: Dementia and Alzheimer’s – Stages of Capacity
In the early stages of dementia and Alzheimer’s, the patient, for the most part, may be lucid and oriented, but suffers from occasional memory loss and mild confusion/disorientation. In this instance, both bioethicists and halachic authorities would respect this patient’s ability to prepare advance directives, appoint a health-care proxy, and, subject to capacity assessments, make certain medical decisions. Halachically, this patient might be regarded as “One who has moments of lucidity and moments of insanity”… and treated as normal whenever he is lucid.16
In mid-stage dementia and Alzheimer’s, there are no hard and fast rules: the progression of the disease may vary significantly from patient to patient. To the extent that the patient is alert and oriented to self and others, and is able to communicate his/her wishes, either verbally or physically (e.g., nodding or eye blinking), as confirmed by assessment protocol, we might consider their medical decisions to be valid. Medically and halachically, capacity is decision-specific and not global in scope. Consequently, every patient’s decision should be evaluated on its own merits.
In end-stage dementia and Alzheimer’s, the patient is totally disoriented, and is unaware of self, others (including family members), time and place. Both medically and halachically, this patient has no capacity whatsoever to make any decisions
- Iggerot Moshe, Even Haezer, 1:120.
- Rosh Hashanah 28a, Tur Choshen Mishpat
and would be regarded as “insane/ shoteh.” 17
In halacha, is an adult child authorized to make medical decisions on behalf of a demented parent who has no advance directives? Rabbi Moshe Feinstein accepts the decision of family members to refuse treatment on behalf of a patient without capacity, where medical intervention may increase the life expectancy of the patient somewhat but will not cure him or alleviate pain.18 “ But in the majority of instances, there are family members…who are engaged in the medical [decision- making] of the patient who are more responsible [than others] for his care, even by halacha.” Indeed, Rabbi Feinstein observes that in the absence of a leading specialist who would prescribe a cure for this patient, a physician must always obtain consent from family, since some medications are not only worthless but possibly detrimental.
II. Long-Term Care Placement
Our Rabbis measure the degree one must honor his parents with paradigms of dementia:
Come and hear: R. Eliezer was asked, “How far does the honor of parents extend?” He replied, ” So that he (his father) should take a purse, throw it in his presence into the sea, and (the son should) not shame him.”19
When R. Dimi came, he said: “He (Dama son of Nesinah)
- Rabbi Y. Zilberstein, cit., p. 199.
- Iggerot Moshe, Choshen Mishpat 2:74, 2. For further discussion on the obligation of a community to provide vital medical treatment to minors, even against the wishes of parents, see Tzitz Eliezer, 15:40,3.
- Kiddushin 32 a. “How far does honoring one’s father and mother extend? Even were they to take his purse of golden coins and throw it in his presence into the sea, he should not embarrass, pain them or become angry, but accept the Torah’s decree in silence.” Yoreh Deah 240:8.
was once wearing a golden embroidered silken cloak and sat among Roman noblemen, when his mother came, tore it from him, struck him on the head, and spat in his face, yet he did not shame her .”20
- Assi had an aged mother. She said to him, “I want jewelry.” So, he made them for her . “I want a husband.” ” I will look out for you!” ” I want a husband as handsome as you.” Thereupon he left her and went to Israel. Upon hearing that she was pursuing him, he went to R. Yochanan and asked, “May I leave Israel to go abroad?” “It is forbidden,” he replied. “But what if it is to meet my mother?” “I do not know,” he replied. He [R. Assi] waited for a short time and went back before him [R. Yochanan] again. ” Assi, you are determined to go. May the Omnipresent bring you back in peace!”21
This last anecdote of R. Assi is truly enigmatic. A cursory reading of the text would suggest that after hearing his mother’s unreasonable demands, R. Assi abandoned her and left the country! In the context of these talmudic anecdotes, all of which underscore the devotion and patience of our great rabbis toward their demented parents, R. Assi’s response seems totally incongruous. Why did he leave her?
The Vilna Gaon in his glosses to that text writes that R. Assi’s mother was indeed “deranged”, and he directs us to Rambam.22 R. Assi’s mother’s requests were apparently not the capricious whims of a lonely widow; rather, they were the ravings of a demented old woman. All the more reason, it would seem, for R. Assi to remain behind to attend to his
- , 31a. “There is a Midrash that she (his mother) was mentally deranged.” Tosafot, ad loc.
- , 31b.
- , 31b . Mishneh Torah, Mamrim 6:10.
mother’s care. This difficulty in explaining R. Assi’s reaction to his mother’s dementia compels Rambam to propose a novel explanation:
One whose father or mother has become deranged should attempt to deal with them according to their capacity until they are treated with compassion (literally, [He] shall have had compassion upon them.”)23 However, if it is impossible for him to remain because they [his parents] have become extremely deranged, he may leave them and go on his way, and charge others to properly care for them.
While Rambam’s explanation addresses the critical issue of how R. Assi seemingly abandoned his mother in her time of need, Rambam’s protagonist, Ravad, challenges him:
This is not a correct ruling – if he, the son, leaves his father behind, whom shall he authorize to watch him?
Other authorities amplify Ravad’s concerns:
A parent who has become deranged requires additional supervision… it is illogical that he should leave his parents (in the care of others) since he, the son, no longer needs to obey their (irrational/ inappropriate) requests… because they no longer have legal capacity… therefore, he is only obligated to provide for their physical needs and security and, so, how may he leave?24
If others are able to provide his father with proper
- The translation of this phrase is particularly troublesome. “He” might refer to God who will have compassion upon the demented parent and heal him (or, euphemistically, bring him eternal peace); alternatively, He may have compassion upon the son and other caregivers to strengthen them spiritually and emotionally through this
- Bach to Tur Yoreh Deah
care, certainly he, the son, is better able to fulfill his father’s wishes and, therefore, he is personally obligated to do so.25
Radbaz offers a contemporary psychological insight into R. Assi’s dilemma:
Certainly R. Assi instructed others to provide for her needs and this is [the only thing that could be] beneficial for her since she has longings [infatuation/fixation] for her son and was not embarrassed before him [to request that he seek a mate for her as handsome as he]; however, others will be able to reprimand her, while he is unable to do so.26
How are we to define a son’s obligation to honor his father by providing for his care? Clearly, Rambam maintains that caring for a parent is not a personal obligation or a mitzvah sheb’gufo – a mitzvah which he, the son, must physically perform
– and no one else; it is unlike the mitzvah of donning tephillin or sitting in a sukkah which one must personally fulfill and cannot delegate to others to act as agents on his behalf. Indeed,
- Assi arranged for his mother’s care in Babylonia while he was studying in Israel. According to Rambam, there are circumstances under which a son or daughter may not be able to render personal care to a parent. In those situations, children are not exempt from their obligation to honor their parent; rather, their role and responsibilities have been transformed from direct caregivers to facilitators of their parent’ s care. In
- Drisha, ad loc. However, Dr. Abraham in Nishmat Avraham (p. 148) writes, “It seems to me that nowadays it is certainly possible to distinguish between supervision/care provided by a son who is not trained and knowledgeable and that of a nurse or facility where the staff is knowledgeable and trained in this matter and they know how to take care of demented individuals.”
- Mishneh Torah, Mamrim 6:10, ad
other words, children are responsible to empower agents (shlichut) to care for their parents when they are unable to do so. 27
Currently, we accept Rambam’s position as normative:
However, if it is impossible for him [the child] to remain because they have greatly changed, he may leave them and charge others to properly care for them.” 28
Indeed, a particularly poignant responsum reflects this practice. Rabbi Eliezer Waldenberg addressed the inquiry of a talmudic scholar whose mother had become mentally deranged to the extent that her wild, erratic behavior seriously disturbed the harmony of his household. He asked Rabbi Waldenberg whether he would be permitted to fasten his mother to a chair in order to restrain her during her rowdy episodes. R. Waldenberg replied that although the son would be personally prohibited from physically restraining her, he should transfer her to the care of others who would do “what is absolutely necessary for her care and medically mandated.”29
Since all talmudic precedents for placing one’s parents in the care of others seemingly relate to cases where they were
- See K’tzot Hachoshen 182 for the critical distinction between one’s direct personal obligation – mitzvah sheb’gufo (g., taking the Arba Minim ) and a mitzvah which may be done on one’s behalf (e.g., building a sukkah). While Drisha, ibid. 9, would make the case that Ravad deems honoring parents a personal obligation – mitzvah sheb’gufo, the plain meaning of Ravad’s words might suggest otherwise: “This is not a correct ruling – if he, the son, leaves his father behind, whom shall he authorize to watch him.” Ravad’s concern is logistical: if the son is far away, how will he be able to authorize/supervise his father’s care? If, however, the son is nearby, he should be able to entrust his father’s care in the hands of others.
- Yoreh De’ah 240:10 . Note that our text (“they have greatly changed“) differs slightly from Rambam’s, which reads that they, the parents, “have become extremely deranged.” For other significant variations, see Tzitz Eliezer 12:59.
- Tzitz Eliezer 12:59.
demented, how may we justify or explain our current practice of placing alert and oriented chronically/ terminally ill elders in nursing homes, when they can no longer care for themselves?
An insight which might explain our current practice may be gleaned in the opening words of the Bach we previously cited:
I say that the opinion of the Ravad is that R. Assi’s mother was not demented but rather quite elderly, and since he wasn’t able to obtain a husband for her as she wished, he left her so as not to disobey her future directives.30
In other words, where a child is thrust into a position where he is no longer able to honor his mother’s unreasonable demands, he is not obliged to personally care for her. In contemporary terms, we might say that it is often emotionally traumatic for a child to comply with the whims of a manipulative and controlling parent. Nevertheless, we would be wise to recall the admonition of R. Saadia Gaon:
… and concerning the Torah rewarding a long life for honoring one’s parents, Rav Saadia offered a rationale: Since elders often come to live with their children for a long time, and they [the elders] become an extremely heavy burden upon them, therefore, the Torah establishes the reward for this mitzvah – ” in order that your days be lengthened,” meaning that it is incumbent upon you, the child, to honor and live with them, and should you be pained by [the burdens you incur resulting from] their [long] lives, recognize that it will be at the pain of your long life [i.e., premature death].31
Though a son may feel compelled, as a last resort, to place
- Bach to Tur Yoreh Deah
- Cited in Rabbeinu Bahya,Shmot 20:12.
his mother in a nursing home, would he still be obligated to do so if, in the process, he would be violating an oath/promise to his mother never to “be sent away to a nursing home?”
It appears that, under extenuating circumstances, halacha might not regard this promise as a legitimate vow, neder ; but, even if it did, there might still be ample grounds to annul it retroactively.
Case at point: A son promised his father twenty years ago that he would never place him in a nursing home; however, at the time this son made his pledge, he was younger, healthier, and had the financial wherewithal to provide his father with nursing care at home. Now, twenty years later, the son has experienced a tragic reversal of fortune: he contracted a debilitating, chronic illness or suffered major financial losses, either of which would make it virtually impossible for him to provide for his parent’s care. Halacha might categorize his pledge as nidrei onsim – unforeseen circumstances or developments beyond one’s control which result in the dissolution of the vow without the need for annulment.32 However, even if his vow requires annulment, in may still be possible to do so, if the court discovers a reasonable basis (petach). 33
For example, what if the son pleads that had he known that the medical and nursing expenses for maintaining his father at home would be far beyond his budget or that the emotional
- Yoreh De’ah 232:12.
- Yoreh Deah 228:12. If either a daughter-in-law or son-in-law objects to their spouse’ s parent or relative living in their house, halacha would respect his/her wishes, even if he/she initially consented and allowed the parent/relative to live there for a period of time. Mishneh Torah, Ishut 13:14, Benyamin Zev 137, Divrei Rivot 140, and Piskei Dinim Rabbanim Volume 1,
- Hence, a daughter-in-law’s or son-in-law’s objection to their spouse’s aging parent living in their home would invariably affect family harmony (shalom bayit) and serve as grounds for an annulment of a vow.
stress on his family would be so intense he would never have promised him not to place him in a nursing home? Under these circumstances, a court could accept his statements as grounds for a retroactive annulment of his pledge.
III. Mitzvah Obligations
May a Jewish man who suffers from dementia don tephillin, and participate in a minyan? Would a Jewish woman suffering from Alzheimer’s fulfill the mitzvah of eating matzoh on Seder night?
In order for a Jew to participate in prayer, let alone be counted in the quorum for a minyan, he must be aware that he is “standing before God.” This concept was introduced by Rabbi Chaim Soloveitchik to resolve a conflict in the words of the Rambam.34 The Rambam writes, “Five things disqualify [literally, prevent] prayer (the Amidah )… and intention of the heart. How so? Any prayer without intention is not prayer, and if one prays without intention, he must repeat his prayers with intention. If he [literally, “finds himself”] is confused and anxious, he is forbidden to pray until he is settled [and able to concentrate].” Clearly, then, any prayer without intention is unacceptable. However, a few passages later, the Rambam records, “Whoever prays without intention should repeat the entire prayer with intention; however, if he has intention during the first blessing (Avot), he need not repeat. This implies that as long as one has recited the first blessing with intention, though he did not concentrate on the other blessings which follow, he has, post facto, fulfilled his obligation to pray.
Rabbi Soloveitchik distinguishes between two forms of intention during prayer. The first is the realization that one is standing before the Divine presence, which is the very essence
- Chidushei Rabbenu Chaim Ha Levi, Mishneh Torah, Tefillah, 4:
of prayer. R. Soloveitchik contends that one’s consciousness/ awareness that he is standing before God is absolutely essential. Hence, if one is unaware that he is standing before God, it is as if he is preoccupied with some other activity, and his prayer is unacceptable. The second kind of intention refers specifically to the mitzvah of prayer itself. If one is conscious of the fact that he is standing before God, though he is not focused on the meaning of the prayer, his prayer is acceptable (with the exception of the first blessing, Avot.)
When assessing cognitive capacity, we look for three factors, namely that the individual in question be “alert and oriented,” meaning that he or she is aware of self, location, and time. As the dementia/Alzheimer’s progresses to more advanced stages, patients increasingly withdraw into their own worlds. They lose any sense of self and others and fail to identify even close relatives; moreover, they are unaware of where they are, the time of day, the date, and the season of the year. At this stage, Rabbi Yitzchak Zilberstein concludes:
It is reasonable that an elder whose mind is confused may be classified as deranged [nitrefa daato ], and if he is unaware of his whereabouts and does not recognize his relatives, his halachic status is that of an insane/ shoteh individual. Nevertheless, if he knows the time, but suffers memory loss and can’t recall where he was yesterday and what he did a few hours ago, he is treated, halachically, as a normal person; however, he would be disqualified from rendering testimony.
Clearly, an individual suffering from advanced dementia/ Alzheimer’s is unaware of his surroundings and does not realize that he is in a synagogue or that he is participating in a minyan; consequently, he would be exempt from prayer. In Rabbi Soloveitchik’s words, this demented individual would not be conscious that he is “standing before God.”
The Chafetz Chaim, in Biur Halacha, comments on the ability
of a shoteh to participate in zimun [the minimum quorum of three for the preliminary invitation to recite grace after meals] and minyan. Referring to a shoteh who has ” intent and understands,” the Chofetz Chaim writes:
See glosses (of Ramo) on 199: 10, which imply that even a shoteh may join in the zimun quorum if he has intent and understands, and this ruling should apply to prayer (minyan), at least as a last resort [since, in a previous opinion of Ramo in his glosses on 55: 4, he implies that we are more lenient in counting a shoteh towards a minyan than for the zimun quorum… the rationale being that Jews should not be deprived of Borchu and Kedusha (i.e., prayers which require a minyan)]. See the Magen Avraham there (199: 8) who explains that we are not referring to a total shoteh. But this (the Magen Avraham’s statement) is not clear, since he (Magen Avraham ) is attempting to resolve a difficulty from this chapter and he will be unable to do so according to our established rule of Yoreh Deah 1:5 that, biblically, even one erratic action renders him totally insane (shoteh gamur)… However, truthfully, Magen Avraham’s statement that we are not referring to a total shoteh [is normative]… and thus it is obvious that regarding prayer as well, they are not counted towards the minyan even as a last resort…. One who sometimes acts normally and at other times acts deranged is treated as normal during those times when he acts normally. [Choshen Mishpat 35:9] 35
May a man who has dementia/Alzheimer’s don tephillin?
The mitzvah of tephillin presents at least two challenges for those suffering from more advanced forms of dementia/
- Orach Chaim 55:8.
Alzheimer’s. While one is wearing tephillin, he must be constantly aware of the fact that he is wearing them:
One who is suffering or whose mind is unsettled is exempt [from wearing tephillin] because it is forbidden to be distracted from them.36
The Chafetz Chaim explains that one “whose mind is unsettled” refers to an individual who is unable to clear his mind and focus; however, if he is able to do so, he is required to don tephillin.37 Consequently, a demented individual who is unable to refocus his thoughts on the task at hand would be exempt from the mitzvah of tephillin.
Additionally, one who wears tephillin must be in a state of physical purity and cleanliness. Hence, if he is experiencing bouts of diarrhea or flatulence, he is exempt from tephillin; indeed, under these conditions, he is not even permitted to pray, though this means he may be compelled to recite the Amidah after its proper time.38 As a result, a dementia/ Alzheimer’s patient who wears diapers and suffers from both urinary and fecal incontinence, as well as flatulence, would generally be exempt from tephillin and prayer/minyan.39
- Orach Chaim 38:9.
- Ad loc., Mishnah Berurah, 31.
- Orach Chaim 38:1,2 and
- In Orach Chaim 78 and 79, we find that halacha allows an individual, under certain conditions, to continue praying the Amidah , even if he accidentally leaked urine in the midst of his prayers, nevertheless, halacha finds no such dispensation for fecal incontinence. Also, see Iggerot Moshe Orach Chaim 1:27 who rules that a patient with an indwelling catheter may pray and recite blessings, providing that the catheter itself is covered. Note Kaf haChaim (1) who writes that it is a mitzvah to warn elders who are ignorant of the law not to recite Shema, Amidah and blessings. He contends that due to their advanced age and condition, the majority is not careful about preventing urine from leaking onto their clothing, and they do not pay attention to their personal hygiene nor do they change their pants/clothing before prayers.
Would a woman suffering from Alzheimer’s be exempt from eating matzoh and participating in the Seder?
The mitzvah to eat matzoh on Passover night is time-activated and, as such, women would typically be exempt; in this instance, however, they are obligated since those who are included in the prohibition of eating chametz (which applies to women too) are included in the positive commandment to eat matzoh.40 Interestingly, the Shulchan Aruch offers two related cases, which shed light on our inquiry:
If one eats matzoh without intention, for example, he was forced against his will to do so by gentiles or bandits, he has fulfilled his obligation since he knows that tonight is Passover and he is obligated to eat matzoh; however, if he thinks that it is a weekday night or that this is not matzoh, he has not fulfilled his obligation.41
The Chafetz Chaim observes that we generally subscribe to the dictum that “mitzvot require intention” in order to fulfill one’s obligation, and, in this instance, he not only lacked intent but was compelled to eat the matzoh against his will; nevertheless, he fulfilled his obligation because he swallowed and enjoyed the matzoh and, “in food matters,” we do not apply the dictum. Nevertheless, he notes that many authorities maintain that this dictum is universal and, consequently, if he lacks intent, he has not fulfilled his obligation. However, what is critical to our discussion about dementia/Alzheimer’s is that,even according to the Shulchan Aruch ’s position, namely that one fulfills his obligation though he lacks intent, is the proviso: “since he knows that tonight is Passover and he is obligated to eat matzoh.” Essentially, every Jew should be aware that this night – the night of the Passover Seder – is different from all
- Orach Chaim 472:
- Orach Chaim 475: 4 and Mishnah Berurah, ad
other nights and that he/she is obligated to eat matzoh. Clearly, then, a demented individual who has no sense of time or place and is unable to focus on the task at hand would appear to be exempt from this mitzvah – even if intent is not required!
However, what would halacha rule in a case where, during the Seder, he also has lucid moments when he is fully alert and oriented?
If one experienced an epileptic attack while eating an olive-sized piece of matzoh, and subsequently recovered, he is [then] obliged to eat [another olive-sized piece of matzoh to fulfill his obligation] because at the moment he ate, he was exempt from any mitzvot.42
According to the Chafetz Chaim, the epileptic, at the moment of the attack, is treated as a full-fledged shoteh and is comparable to a minor who is not obligated to perform any mitzvot. Consequently, whatever matzoh he ate during his attack is inconsequential and, when he recovers later during the Seder, he must first fulfill his obligation by eating an olive-sized piece of matzoh. In his Shaar HaTzion , the Chafetz Chaim contrasts the case of an epileptic with that of one who is exempt from the mitzvah to eat matzoh, such as a watchman for a deceased individual. In the latter, the watchman is fully obligated to perform the mitzvah to eat matzoh, however, he has a dispensation since “one who is already engaged in a mitzvah is exempt from performing another [concurrent] mitzvah.” Consequently, even if the watchman mistakenly ate the matzoh instead of caring for the deceased, he has nevertheless fulfilled the mitzvah, and is no longer obligated to eat matzoh later that night. An epileptic, however, at the moment of his attack, has no obligation to eat matzoh because he is not a fully intact person, and any mitzvah he performs at that time has no
- Orach Chaim 475: 5 on Mishnah Berurah, (39).
halachic validity; as a result, he must perform the mitzvah later when he recovers.
The Chafetz Chaim’s distinction would seem to have great bearing on defining the stages of dementia vis-à-vis mitzvah obligations. In early to intermediate stage dementia, the patient, for the most part, may be lucid and oriented, but suffers from occasional memory loss and mild confusion/disorientation. At this stage, the demented individual would be comparable to the watchman who is fully obligated to perform mitzvot: he is essentially intact, a person whose actions have halachic validity and need not be compensated at a later time. Halachically, this patient might be regarded as “one who has moments of lucidity and moments of insanity”… and treated as normal whenever he is lucid. However, in intermediate to advanced dementia, a patient may be totally disoriented, and unaware of self, others (including family members), time and place. At this stage, he is no longer fully intact, and would be comparable to an epileptic during his attack, whose actions have no halachic validity. Unfortunately, though, this demented individual, whose condition is irreversible, will not have a later opportunity to perform the mitzvah in a lucid state, unlike the epileptic who will recover from his episode.