As a result of legislation passed earlier this year, starting on November 1, 2021 , residents of Oklahoma can no longer appoint a durable power of attorney (POA) for healthcare. Due to this legislation, any durable power of healthcare attorney executed before November 1, 2021 should still be viewed as valid, but any durable power of healthcare attorney that is entered into after that date will no longer be viewed as valid under Oklahoma state law.
Hospitals and other types of medical facilities in the state will now take into consideration the terms reflected in durable power of healthcare attorney documents but will no longer afford these estate planning documents full consideration when it comes to making decisions. Several hospitals in the state have already requested that the Oklahoma legislature reinstate the durable power of healthcare attorney, however.
A Quick Guide to the Uniform Power of Attorney Act
During the 2021 legislative session, House Bill 2548 created the new Oklahoma Uniform Power of Attorney Act, which canceled the provisions of the Uniform Durable Power of Attorney Act that allowed individuals the power to utilize a durable POA for healthcare. HB 2548, however, cancels the power to make healthcare decisions and limits a person’s options to appoint another individual to make healthcare decisions for the incapacitated individual.
The Uniform Power of Attorney Act was established to address weaknesses found in both the Uniform Probate Code as well as Durable Power of Attorney. Some of the important provisions to understand about the Uniform Power of Attorney Act include:
POA documents created before the act was passed are valid provided these documents comply with state law when they are drafted
Agents are not considered accountable for misconduct provided that a decision is both in the best interest of the principal and also benefits the agent
Third parties are not required to honor a POA if they either are aware of or reported financial or physical abuse of one of the principal’s agents
Powers of attorney are considered valid if they meet state laws addressing creation
To be valid, POA documents created following the Act’s enactment require the principal to sign the document in the presence of a notary
Response to the Legislation
Healthcare lawyers are currently in disagreement about the exact impact of this regulation and they are working to identify what options are needed now to help people in the state make more healthcare decisions.
The primary author of the legislation has commented that he will be working to make any necessary amendments to the statute, if necessary. In the interim, hospitals should engage in conversations with healthcare providers addressing people who present durable healthcare POA documents executed after November 1, 2021. Any legislation impacting these changes will not occur until May, 2022, at earliest, which means that hospitals and other medical facilities should discuss how to implement this change.
Contact a Compassionate Estate Planning Attorney
One of the biggest challenges presented by Oklahoma law is staying up to date with changes in estate planning. Fortunately, a knowledgeable estate planning lawyer can make sure that you take even the most recent into consideration. For assistance, contact attorney Jim A Lyon today to schedule a free case evaluation.