How to File for Durable Power of Attorney in Oklahoma

Think of a power of attorney (POA) as one of the tools available to create an estate plan. But it's not a hammer or a screwdriver. Rather, a POA is one of the power tools that can be extremely helpful in accomplishing a goal, but also can be dangerous unless used with caution.

In the state of Oklahoma, as in all other states, a POA is a legal document that is available to any competent adult. A person wishing to make a POA appoints another individual to act for them in certain situations, most typically in financial and health care matters.

A regular power of attorney terminates when the person making it is deemed incompetent. A durable power of attorney remains in effect.

Who needs a power of attorney? Potentially, anybody. A power of attorney is a document that gives one individual the legal power to act for another. The person making the POA is termed the principal. They select a trusted person, called the agent or, sometimes, "attorney in fact," who is given authority to act for the principal.

The principal determines the scope of the POA and sets out its limits in the document itself. A POA in Oklahoma can be extremely narrow, like a POA authorizing someone to act on the principal's behalf in the sale of a used car. It can also be extremely broad, giving the agent control over the principal's finances or medical care.

The principal making the POA also determines its duration. Someone heading out for a month's vacation may give a family member a POA to act on their behalf just during that month, paying bills that come in and generally tending to business matters. But Oklahoma also recognizes powers of attorney with a longer duration.

Unless a principal includes a termination point in the POA itself, Oklahoma powers of attorney last until the principal terminated the agreement, dies or becomes incompetent. A different type of POA, termed a durable power of attorney (DPOA), continues in effect even if the principal is incapacitated.

In fact, many POAs in Oklahoma are DPOAs, used in estate plans as a safeguard should the principal become incompetent, unable to manage their affairs or determine appropriate medical care.

Given the many different situations that can arise where a POA might be useful, it is no surprise that Oklahoma permits more than one type of POA. The four basic types of POAs that a principal can consider in Oklahoma are:

• Simple POA.
• Durable POA or DPOA
• Immediate or springing POA.
  
• Healthcare or business affairs POA.
  

Each of these powers of attorney require that the form be signed before a notary. Some require, in addition, that two adult witnesses are present at the signing.

A simple power of attorney in Oklahoma is the legal document stripped down to its essential form. It authorizes a named agent to act on behalf of the principal and sets out the scope of the power conferred. It is the form one uses to give someone power to sell a car, for example, but may also be much broader in scope.

Generally, a POA can give authority for an agent to act on the principal's behalf in any matter other than acts reserved for the person themselves, like getting married or voting.

A simple power of attorney must be signed before a notary. The authority in the document lasts until:

• Principal terminates or cancels the POA.
  
• Principal dies.
  
• Guardian is appointed over the principal.
  
• Principal becomes mentally incompetent, as determined by two physicians.

A general POA is useful in Oklahoma if parents go out of town and leave their children with relatives. In that case, consent to medical care may be needed. It can also serve if a spouse will not be available to attend a real estate closing.

As the name indicates, a durable power of attorney in Oklahoma is more durable than a general POA. It terminates automatically when the principal dies or when it is superseded by a guardianship order, but continues in full force and effect if the principal becomes mentally incompetent. These POAs must be signed before a notary and two adult witnesses.

The Oklahoma legislature recently amended the state's DPOA laws by enacting the Uniform Power of Attorney Act. It is important to keep these updates in mind when executing a power of attorney. First, the law makes the POA effective once it is signed and notarized. The principal must specifically state if the POA is to be effective only on a particular condition.

The new law also makes a durable power of attorney the default type of POA in the state. That is, unless the principal specifically states that the power of attorney ends on incapacity, the new statutory form in Oklahoma automatically executes a durable power of attorney, and the authority survives incompetence or incapacity.

The new statutory form makes several other changes that must be taken into account. It sets out a list of specific powers the principal can initial if they wish to grant that particular authority to the agent, including:

• Designating beneficiaries of assets.
• Changing estate plans.
  
• Making gifts.
  
• Appointing an agent.
  
• Accessing electronic communications.

Any authority on the form list that is not checked is not granted to the agent.

This type of power of attorney is sometimes called a springing POA because it "springs" into effect if and when the principal becomes incompetent or unable to make their own decisions based on the opinions of two independent physicians. Guidelines to determine incompetency can be included in the POA to guide the physicians.

Note that, under current Oklahoma law, a durable POA goes into effect immediately. The principal can create a springing POA, however, by specifying that the authority will not go into effect until they become incompetent.

Current Oklahoma law regarding the state's health care durable power of attorney has gone through a roller coaster of changes in the past few years. The law in effect before 2021 allowed individuals to use a POA to appoint an agent for healthcare purposes.

The principal was permitted to designate an agent to make medical decisions on their behalf in the event of their incapacitation. They would typically choose a close friend or relative to be in charge of all of their major health care decisions including a health care proxy.

For example, the principal could appoint an agent as their legal representative under the Oklahoma Do Not Resuscitate Act (DNR Act), giving them the ability to sign a Do Not Resuscitate consent form. This form gives health care professionals the authority to change a patient's status to DNR.

The 2021 amendments to the POA repealed the former law to the extent that the old law permitted the appointment of an agent for healthcare. The updated Uniform Power of Attorney Act removed an individual's ability to select someone to make the principal's healthcare decisions. In fact, the new statutory form specifically states that the POA cannot be granted that authority.

However, the new law permits the POA agent to have authority to access the principal's finances to pay for the principal's health care, but no longer make healthcare decisions for the principal. The new prohibition applied to all POA forms created before the date of the new law, November 1, 2021. POAs validated before that date remained valid.

Note that, less than a year after enactment, the law was again amended to permit a healthcare POA similar to the prior law. The new amendments in effect reinstate the old elements of the durable power of attorney for health care.

The POA for healthcare now goes into effect when the principal can no longer understand and make informed decisions about their health care and it remains in effect during the principal's incapacity.

The POA agent may make healthcare decisions for the principal if they follow any written instructions from the principal and align with the principal's best interests, including selecting and discharging health care providers, consent or refusal of any treatment or service to diagnose and treat a medical condition, and signing a do-not-resuscitate consent in accordance with the provisions of the Oklahoma Do-Not-Resuscitate Act.

A POA under this act sets out a new sample form Health Care Power of Attorney . The form need no longer be notarized, but it must be signed by the principal and witnessed by two individuals who are at least 18 years old. The witnesses cannot be beneficiaries or heirs at law of the principal.

As described, a durable power of attorney form can be a very powerful tool in an estate plan. But it grants the agent significant authority and should be approached with care and caution.

It is always a good idea to discuss a DPOA with an attorney before preparing it. Although this is not a legal requirement, it makes a lot of sense when one considers the potential problems that can arise from a carelessly drafted document.

Before bringing an attorney into the mix, however, an individual should consider well their goals and intentions regarding a durable power of attorney.

A principal needs to know if they want their POA to focus on financial and/or business aspects of their life and whether they want to appoint someone to take care of medical decisions for them should they become incompetent.

Perhaps the most critical issue in preparing a durable POA is the selection of the primary agent and, to be safe, a back-up agent as well, in case the first choice predeceases the principal or is otherwise unable to serve. It is a good idea to talk to the person or persons to be named in order to make certain they are willing and able to serve in this capacity.

Above all, the most important thing is for the principal to select a trusted individual who understands what they are being asked to undertake and is prepared to act on behalf of the principal. When a back-up agent is to be appointed, they should be informed that they will only be called upon to act if the primary agent cannot do so.

Anyone making a health care power of attorney in Illinois might also take the time to prepare a health care directive. In this form, they set out the types of treatment and procedures they would want performed, even if their life is in danger.

Principals need to walk through the health care directive with the proposed health care agent and make sure that person is willing to use it as their guide.