The Oklahoma Bar Journal November 2024

Quite understandably, Mrs. S. resented a guardian being appointed for her property. She particularly resented the manner in which it was accom plished in that she had no notice of it until after it had been accomplished. Mrs. S., being in remarkably good health and active, was resent ful of the implication that she is unable to handle her affairs and like most people her age probably does not accept the fact that at her age she does not have the same memory that she had at an earlier age. ... After hearing all of the evidence, I am of the opinion that due to the infirmities of old age, particu larly forgetfulness, Mrs. S. is in danger of losing or dissipating her property and it would be in the best interest of Mrs. S. that the guardianship of her prop erty be continued. 23 Did sanism, ageism or a com bination of the two drive these decisions? Certainly, the biased rhetoric in the opinions raises their specter. 24 In fact, if these statements did not describe a part of the courts’ reasoning for the outcomes, they would have no place in the opinion at all. Most significantly, for the purpose of this discussion, look at the myth that all types of cognitive abilities inevitably worsen with age. It is true that some cognitive skills, such as reaction times, tend to slow a bit over time. But other functions remain robust and even improve. One study of older adults, for instance, showed they were better than middle-aged adults at orienting their atten tion and ignoring distractions. 25 The decisions above prompt this

In further describing the impact sanist thinking has upon the judi cial system, Professor Perlin notes: Judges reflect and project the conventional morality of the community, and judicial deci sions in all areas of civil and criminal mental disability law continue to reflect and perpetu ate sanist stereotypes. Their lan guage demonstrates bias against mentally disabled individuals and contempt for the mental health professions. Courts often appear impatient with mentally disabled litigants, ascribing their problems in the legal process to weak character or poor resolve. Thus, a popular sanist myth is that “[m]entally disabled individuals simply don’t try hard enough. They give in too easily to their basest instincts, and do not exercise appropriate self-restraint.” We assume that “[m]entally ill individuals are presumptively incompetent to participate in ‘normal’ activities [and] to make autonomous deci sions about their lives (especially in the area of medical care).” 20 In the elder law context, sanism can combine with an often-related ism – ageism. As for the definition: Ageism is the belief that the mental deterioration from age renders the elderly completely incompetent in all areas of their life. Out of a false sense of necessity, their wishes are trans formed into our wishes or what we subjectively feel they would want. Too often we practice sympathy without empathy. The object of sympathy is the other person’s well-being; the object of empathy is understanding. 21

In In re Citizens State Bank & Trust Co. of Hiawatha , 22 Mr. Nolte agreed to provide care and services to Helen M. Reller until her death should her financial resources be depleted to the extent that she could not provide for herself. Mr. Nolte further agreed to pay the expenses of her last illness and funeral if her estate was insuffi cient. In consideration, Ms. Reller executed and delivered to Mr. Nolte a warranty deed conveying to him a remainder interest in 400 acres of farmland, reserving a life estate to herself. Certain relatives of Ms. Reller became concerned about her attachment to Mr. Nolte and took steps to prevent him from visiting her. Her conser vator filed suit to set aside the conveyance. The trial court found Ms. Reller mentally competent and aware of legal procedures in executing the deed and contract. The court further found that there was adequate consideration for the deed and contract, and the defendant did not unduly influence her. The appellate court took up the issue of “whether the imposition of the voluntary conservatorship without a finding of incapacity, deprived Ms. Reller of her capacity to contract and convey away her real property by deed during the conservatorship.” Reversing, the Kansas Supreme Court declared, “As all of us [grow] older, we gradually lose our fac ulties, both physical and mental. The longer we live and the older we become, the more we lose.” Similarly, in In re LPS, a Delaware appellate decision upholding a guardianship pro cured without notice to the intended ward. In justification of the court’s decision, a judge opined:

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.

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THE OKLAHOMA BAR JOURNAL