Oklahoma City, OK asked in Elder Law for Oklahoma

Q: What do I do if we need an advance care directive for my mother, but she has dementia?

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2 Lawyer Answers
Richard Winblad
Richard Winblad
  • Elder Law Lawyer
  • Edmond, OK
  • Licensed in Oklahoma

A: It depends upon the level of dementia. If she doesn't have sufficient competency to understand what she wants, the law has provisions for who makes the decisions.

63 OS Section 3102.4

When an adult patient or a person under eighteen (18) years of age who may consent to have services provided by health professionals under Section 2602 of Title 63 of the Oklahoma Statutes is persistently unconscious, incompetent or otherwise mentally or physically incapable of communicating, those reasonably available and willing in the following classes, in the order of priority below, are authorized to make health care decisions for the patient under the same standard as that applicable to making life-sustaining treatment decisions under Section 3101.16 of Title 63 of the Oklahoma Statutes, excluding any person who is disqualified from exercising such authority by Section 3 of this act. If those within a class disagree, a majority within the class may make a health care decision for the patient. However, a provider of health care to the patient or any member or members of any of the following classes may petition a court that would have jurisdiction over a guardianship proceeding concerning the patient under Section 1-115 of Title 30 of the Oklahoma Statutes to seek an order directing a different health care decision on the ground that the health care decision or decisions made violate the standard required by this section, granting another member or other members from among the following classes (notwithstanding the statutory order of priority) supervening authority to make health care decisions for the patient on the ground that clear and convincing evidence demonstrates they are more likely to adhere to that standard, or both. Upon motion by any party, the court shall issue an order requiring that pending its decision on the merits and the resolution of any appeal the patient be provided with health care of which denial, in reasonable medical judgment, would be likely to result in or hasten the death of the patient, unless its provision would require denial of the same health care to another patient. The classes are as follows:

1. A general guardian of the person appointed pursuant to subsection A of Section 3-112 of Title 30 of the Oklahoma Statutes or a limited guardian of the person appointed pursuant to subsection B of Section 3-112 of Title 30 of the Oklahoma Statutes with authority to make personal medical decisions as determined under paragraph 5 of subsection B of Section 3-113 of Title 30 of the Oklahoma Statutes;

2. A health care proxy, or alternate health care proxy, designated by the patient, as defined in paragraph 6 of Section 3101.3 of Title 63 of the Oklahoma Statutes;

3. An attorney-in-fact authorized to act pursuant to the Uniform Durable Power of Attorney Act, Sections 1071 through 1077 of Title 58 of the Oklahoma Statutes, with authority to act regarding the patient's health and medical care decisions, subject to the limitations under paragraph 1 of subsection B of Section 1072.1 of Title 58 of the Oklahoma Statutes;

4. The patient's spouse;

5. Adult children of the patient;

6. Parents of the patient;

7. Adult siblings;

8. Other adult relatives of the patient in order of kinship; or

9. Close friends of the patient who have maintained regular contact with the patient sufficient to be familiar with the patient's personal values. Execution of an affidavit stating specific facts and circumstances documenting such contact constitutes prima facie evidence of close friendship.

Reece B. Morrel Jr
Reece B. Morrel Jr
  • Elder Law Lawyer
  • Tulsa, OK
  • Licensed in Oklahoma

A: This is a very good question, and a topic at a continuing education conference I recently attended.

Ultimately, it does depend on how much her dementia impacts her ability to understand what is going on.

Some people may not be able to drive, but can still understand what is going on around them. I have some clients that suffer from "Sundowner's Syndrome" - they do great in the morning but by late afternoon they start to fade. So, we meet in the morning instead of the afternoon. Problem solved.

Sometimes it is still possible to proceed with "updating" certain documents if there is a change in the "big picture" scheme of things. For example, this kind of scenario could happen if a Health Care Proxy or Successor Trustee died or moved far away.

But, if her condition is very advanced, it may be necessary to have a court appoint a guardian.

From your description, it sounds like she did not previously prepare such a document. In this case, I would recommend that you consult with a lawyer to discuss the specific facts of your case further.

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