MARCH 2026 | 17 THE OKLAHOMA BAR JOURNAL 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. falsely create or coerce a principal into creating an advance directive are guilty of a felony.20 Practitioners who undertake proper undue influence screening can avoid these bad actors and help prevent elder abuse. Attorneys who feel an older client is being taken advantage of by their caregiver may report the abuse to Adult Protective Services.21 ASSESSING HPOA/ADVANCE DIRECTIVE PRINCIPALS Accordingly, it is incredibly important for practitioners to ensure the competency of the person for whom they are drafting an HPOA or advance directive. The attorney assessment worksheet and the undue influence screening tool found in the Assessment of Older Adults with Diminished Capacities: A Handbook for Lawyers22 (the handbook) are excellent resources for helping properly assess whether a principal is competent to sign an HPOA or advance directive or if, instead, a guardianship is necessary. After an initial interview, the handbook suggests the attorney use the following chart to consider how to proceed with possible representation of an individual with diminished capacity: Client Capacity Action Options No or minimal evidence of diminished capacity. Proceed with representation and transaction. Mild concerns – Some evidence of diminished capacity, but less than substantial. 1) Proceed with representation/transaction. An associated note to the file may be helpful to document your conclusion. 2) Explore decision support strategies to reinforce capacity. 3) Consider medical referral if medical oversight lacking. 4) Consider consultation with mental health professional. 5) Consider referral for formal clinical assessment to substantiate conclusion, with client consent. More than mild concerns about capacity even with decision supports, or decision- support is not available. 1) Explore decision support strategies further to reinforce capacity. Clear documentation of concerns and actions contemplated or taken will be important here. 2) Medical referral if medical oversight lacking. 3) Consultation with mental health professional. 4) Refer for formal clinical assessment, with client consent. Severe concerns – Client clearly lacks capacity to proceed with representation and transaction. 1) The representation cannot proceed, and alternative legal approaches must be taken (for example, working with family members). 2) Referral to mental health professional to confirm conclusion. 3) Do not proceed with case; or withdraw, after careful consideration of how to protect client’s interests. 4) If an existing client, consider protective action consistent with MRPC 1.14(b).
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