The Oklahoma Bar Journal November 2024

can have significant ramifi cations for the enjoyment of a person’s human rights. This is particularly the case where the assessment is triggered by ageist assumptions or fails to respect the person’s dignity or auton omy, or where it does not max imize their participation in the process as much as possible. 14 INTRODUCTION TO SANISM First, as to nomenclature, “san ism is an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry.” 15 As Professor Michael Perlin, who is widely credited with importing the study of sanism from the realm of medical ethics into the field of law, 16 argues, sanism affects our juris prudence and lawyering practices; it remains largely invisible and socially acceptable. 17 Sanism perme ates all kinds of mental disability law, including involuntary civil com mitment, the right to treatment, the right to refuse treatment, the right

to sexual interaction, the Americans with Disabilities Act, the compe tence to plead guilty, the compe tence to waive counsel, the insanity defense and the federal sentencing guidelines, among others. 18 To fully understand the impact of sanism on the law in general, we must also recognize sanism’s side kick and constant companion, “pre textuality.” Professor Perlin explains: “Pretextuality” means that courts accept (either implicitly or explicitly) testimonial dishonesty and engage similarly in dishon est (and frequently meretricious) decision-making, specifically where witnesses, especially expert witnesses, show a “high propensity to purposely distort their testimony in order to achieve desired ends.” This pre textuality is poisonous; it infects all participants in the judicial system, breeds cynicism and disrespect for the law, demeans participants, and reinforces shoddy lawyering, blasé judging, and, at times, perjurious and/or corrupt testifying. 19

The recognition of the testator’s intent as the “gold standard” for judicial inquiry dovetails with the uniquely American veneration of traits such as individualism and control of one’s private property duly worked for and earned. Estate planning according to one’s own wishes, carries with it respect for self-worth and autonomy. For many older Oklahomans, par ticularly those of modest means, self-worth and autonomy are their most prized and valuable assets. 13 There are those who regard the right of testamentary disposition as a human right. For example: The ability to make legally recognized decisions is fun damental to the exercise of human rights and is reflected in the core values of dignity, autonomy, participation and liberty. Respect for human rights requires that capacity be presumed absent evidence establishing incapacity. The process of capacity assessment also raises human rights issues as a determination of incapacity

The recognition of the testator’s intent as the ‘gold standard’ for judicial inquiry dovetails with the uniquely American veneration of traits such as individualism and control of one’s private property duly worked for and earned.

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

34 | NOVEMBER 2024

THE OKLAHOMA BAR JOURNAL