Finance
Instrument: Power of Attorney (POA)
What is it for?
The “power of attorney” (POA) allows an adult (the “principal”) to authorize another person (the “agent”) to make decisions concerning the principal’s property.
What does it do?
The POA empowers the agent to be able to make decisions and act with respect to the principal’s property. Unless the POA expressly limits the agent’s authority, the agent is granted authority over a broad range of matters, including managing the principal’s money, receiving government benefits, entering into contracts, and pursuing legal claims. Okla. Stat. Ann. tit. 58, § 3024. A POA, however, does not authorize an agent to make health care decisions for the principal. Okla. Stat. Ann. tit. 58, § 3003(2).
Unless a POA expressly states otherwise, a POA is considered to be “durable,” which means the agent’s authority continues during a period when the principal lacks capacity. Okla. Stat. Ann. tit. 58, § 3004.
In making decisions for the principal, the agent must act in good faith, only within the scope of the authority granted in the POA, and in accordance with the principal’s known expectations and in the principal’s best interest. Okla. Stat. Ann. tit. 58, § 3014.
Third parties must generally accept decisions made by the agent as if the principal had made them. They may, however, request the agent for a certification of the POA’s validity prior to relying on the agent’s authority. Okla. Stat. Ann. tit. 58, § 3020.
How does one make it?
A POA must be signed by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name, and it must be notarized. Okla. Stat. Ann. tit. 58, § 3005.
When does it come into effect?
A POA can state that the agent’s authority begins either immediately upon execution, at a future date, or upon the occurrence of a future event, such as the principal’s incapacity. Okla. Stat. Ann. tit. 58, § 3009(A).
If a POA becomes effective upon a future date, occurrence, or event, the principal may designate one or more persons to determine that the future date, occurrence, or event has occurred in writing. Okla. Stat. Ann. tit. 58, § 3009(B). If the future occurrence is the principal’s incapacity, then that determination will be made by a physician or licensed psychologist who has evaluated the principal, unless the POA states otherwise. Okla. Stat. Ann. tit. 58, § 3009(C).
For the purpose of this determination, “incapacity” means the principal is unable to manage their property or business affairs for two main reasons due to an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. Okla. Stat. Ann. tit. 58, § 3002(5).
How long does it last?
A POA generally lasts until the principal or agent dies; the principal revokes the POA; the POA provides that it terminates upon some future date or event; the purpose of the POA is accomplished; or the agent’s authority is revoked. Okla. Stat. Ann. tit. 58, § 3010.
How does one end it?
Presumably, the principal may revoke the POA at any time by either destroying the POA and notifying the agent or by another method that communicates the principal’s intent to revoke.
What does an example look like?
Oklahoma provides a statutory form at Okla. Stat. Ann. tit. 58, § 3041.
What else should one know?
Oklahoma’s POA is based on the UPOAA.
Last updated November 2022
Education
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Health
Instrument: Health Care Proxy (HCP)
What is it for?
The “health care proxy” (HCP) is a type of advance health care directive that allows an adult (the “declarant”) to appoint another (“health care proxy”) to make health care and treatment decisions for the declarant while the declarant is unable to do so.
What does it do?
A health care proxy is authorized to make health care and treatment decisions for the declarant in the event that the declarant’s attending physician and another physician both believe that the declarant is incapable of doing so. Okla. Stat. Ann. tit. 63, § 3101.3(6). The proxy is authorized to make whatever medical treatment decisions the declarant could make on their own.
An advance health care directive may be limited to an HCP, or it may also contain provisions for a living will or directions for anatomical gifts. Okla. Stat. Ann. tit. 63, § 3101.4.
How does one make it?
The HCP must be in writing, signed by the declarant, and witnessed by at least two adults that are not related to the declarant and will not inherit from the declarant. Okla. Stat. Ann. tit. 63, § 3101.4. The proxy must not have ever been charged criminally with, convicted of, pled guilty to, or pled no contest to a charge of elder, caretaker, or child abuse in the state of Oklahoma. Okla. Stat. Ann. tit. 63, § 3102.5.
When does it come into effect?
The health care proxy may make health care decisions for the declarant only if the declarant is “persistently unconscious, incompetent, or otherwise mentally or physically incapable of communication.” Okla. Stat. Ann. tit. 63, § 3101.3(6).
Both the declarant’s attending physician and another physician must agree that the patient is “incapable of making an informed decision regarding health care.” Okla. Stat. Ann. tit. 63, § 3101.3(10). Their determination must be included in the patient’s medical record. Okla. Stat. Ann. tit. 63, § 3101.7.
How long does it last?
The health care proxy’s authority remains in effect until it is revoked. Okla. Stat. Ann. tit. 63, § 3101.4.
How does one end it?
The declarant may revoke the HCP in whole or in part at any time and in any manner, without regard to the declarant’s mental or physical condition. A revocation is effective upon communication to the attending physician or other health care provider by the declarant or a witness to the revocation. Okla. Stat. Ann. tit. 63, § 3101.6(A).
What does an example look like?
Oklahoma provides a sample HCP form at Okla. Stat. Ann. tit. 63, § 3101.4(C). Forms are also available here, on Oklahoma’s advance directives registry database.
What else should one know?
Oklahoma’s advance directive website links to online registry for advance health care directives, where declarants may store copies of their HCPs.
Last updated November 2022
General
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