The Oklahoma Bar Journal November 2024

example, a client may lack the capacity for certain transactions yet retain testamentary capacity. 40 Once satisfied with both prongs of the capacity assessment, we must then look to the reasons for the atypical disposition to determine the best way to achieve the client’s goals. This exploration requires more than clinical professional skills. It demands emotional intel ligence on the part of the lawyer as well. Making an adequate record is not just for litigators anymore. in the foot when its thought process becomes burdened with a depre ciative mythology to a subset of people, which tends to limit empa thy, communication, compassion and creativity in the provision of quality legal services. The invisible nature and vague social acceptance of sanism make it difficult to appre ciate in daily life and practice. Like many bad habits, once recognized, it becomes easier to suppress. This dis cussion is vital to the mission of both the bench and bar. From the bar’s perspective, it should be remem bered that courtroom advocacy sometimes takes the nature of adult education, including the disabusing both bench and bar of myths and replacing them with empirical and evidentiary-based facts. Cognitive research now shows that implicit biases (those subconsciously held and not controlled by the conscious mind) cannot simply be set aside. 41 Their impact on cognition, behav ior and decision-making ought to be equally important to the legal profession and can lead to a sub conscious prejudice, subconsciously predetermining outcomes of judicial decisions, policy choices and even advocative zeal and case acceptance. CONCLUSION The legal profession shoots itself

Finally, while this article addresses these issues from the perspective of probate and elder law, sanism and ageism occur in other fields of practice. Thus, recognition and understanding become essential to the realization of our constitutional promise that “the courts of justice of the State shall be open to every person , and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice .” 42 To do this effec tively, we must acquire a thorough understanding of the subject matter. Hopefully, this article is a step in that direction. he joined the Senior Law Project of Legal Aid Services of Oklahoma as a staff attorney in 2003. He has served multiple terms as chair of the OBA Appellate Practice Section and is a frequent speaker at state, national and international programs on elder law, appellate law and legal ethics. ENDNOTES 1. Restatement (Third) of Prop.: Trusts and Other Donative Transfers §10.1cmt. a (2003); See also Robert H. Setoff, “Trusts, and Estates: Implementing Freedom of Disposition,” 58 St. Louis U. L. J. 643, 643 (2014) (“The organizing principle of the American law of succession, both probate and non-probate, is freedom of disposition.”). 2. Hodel v. Irving , 481 U.S. 704, 716 (1987). CF United States v. Perkins, 163 U.S. 625, 629 30 (1898): “The law in question is nothing more than an exercise of the power which every state and sovereignty possesses of regulating the manner and terms within which property, real and personal, within its dominion may be transferred by last will and testament or by inheritance, and of prescribing who shall and who shall not be capable of taking it. ... If a state may deny the privilege altogether, it follows that when it grants ABOUT THE AUTHOR Richard J. Goralewicz graduated from King’s College and the OCU School of Law. After 21 years in private practice,

it, it may annex to the grant any conditions which it supposes to be required by its not alone sufficient interests or policy.” (Emphasis supplied). 3. Matter of Estate of Chester , 2021 OK 12, 19, 497 P.3d 284; Matter of James , 2020 OK 7, 27, 472 P.3d 205. 4. 1987 OK 94, 7, 744 P.2d 1267. 5. Restatement (Third) of Prop.: Trusts and Other Donative Transfers §10.1cmt. a (2003). 6. Id at cut c. 7. Matter of the Estates of McClean , 2010 OK CIV APP 24,13, 231 P.3d 727; 84 O.S. 151 (2021). 8. Lomon v. Citizen’s National Bank & Trust of Muskogee , 1984 OK 68, 3, 689 P.2d 306, 308. 9. Shippy v. Elliot, 1958 OK 126, 0, 327 P.2d 645. 10. Matter of Kelsay, 1978 OK CIV APP 5, 5 579 P.2d 838 (pub. per OK. Sup. Ct.). 11. Dannenberg v. Dannenberg, 1953 OK 201, 0, 271 P.2d 345. 12. Arment v. Shriners Crippled Childrens Hospital , 1956 OK 53, 298 P.2d 1048 (Syllabus by the Court No. 1); Miller v. Hodges , 1951 OK 141, 231 P.2d 678; Panache v. Hawkins, 1950 OK 75, 222 P.2d 362; In re Adams’ Estate , 1950 OK 201, 222 P.2d 366. 13. For further reading, see S. K. Heide, “Autonomy, Identity And Health: Defining Quality Of Life In Older Age,” Journal of Medical Ethics 2022; 48:353-356 and Tienke Abma and Elena Bendien, “Autonomy in Old Age,” Family and Law (May 2004). 14. See generally: Bridget Lewis, Kelly Purser and Kirsty Mackie, The Human Rights of Older Persons in Legal Capacity and Decision-Making , pp.139-173 (Springer Link 2020). 15. Michael Perlin, The Hidden Prejudice: Mental Disability on Trial , (American Psychological Association, 2000). 16. See Michael L. Perlin, “On Sanism,” 46 SMU L. Rev. 373 (1993); See also Morton Birnbaum, “The Right to Treatment: Some Comments on its Development,” in Medical, Moral and Legal Issues in Health Care , 97, 106-07 (Frank Ayd, Jr. ed., 1974) regarded as the seminal work on sanism. 17. Perlin, n. 11 supra. 18. Id., passim. 19. Michael Perlin, “Half-Wracked Prejudice Leaped Forth: Sanism, Pretextuality, and Why and How Mental Disability Law Developed as it Did,” 10 Journal of Contemporary Legal Issues 3, 5 (1999) (quoting, in part, Michael L. Perlin, “Morality and Pretextuality, Psychiatry and Law: Of ‘Ordinary Common Sense,’ Heuristic Reasoning, and Cognitive Dissonance,” 19 Bull. Am. Acad. Psychiatry & L. 131, 133 (1991)). 20. Perlin, supra. at Note 14, “Half-Wracked Prejudice,” at page 15. 21. Heather S. Ellis, “Strengthen the Things That Remain: The Sanist Will,” 46 N.Y.L. Sch. L. Rev. 565, 568 (2002-2003). 22. 601 P.2d 1110, 1115 (KS. 1979). 23. In the Matter of L.P.S., C.M. No. 3793,1981 WL 15481, at *2 (Del. Ch. March 26, 1981). 24. By way of further example, see Richard A. Posner, Aging and Old Age (1995) pp. 18-23 (arguing, inter alia advanced age heralds an “inexorable decline” both physically and mentally). 25. J. Veríssimo, P. Verhaegen, N. Goldman, et al , “Evidence That Ageing Yields Improvements As Well As Declines Across Attention And Executive Functions,” Nat Hum Behavior 6, 97–110 (2022). 26. Pamela R. Champine, “A Sanist Will?” 19 N.Y.L. Sch. J. Hum. Rts. 177 , 179 (2003).

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