by Cody Jones
On November 1, 2021, the new Oklahoma Uniform Power of Attorney Act (the “New POA Act”) went into effect under 58 O.S. § 3001, et seq. The new legislation repeals the Uniform Durable Power of Attorney Act (the “Old POA Act”) which was found at 58 O.S. §1071, et seq. A durable power of attorney and/or health care power of attorney validly executed under the Old POA Act prior to November 1, 2021, remains valid even after the repeal of the Old POA Act. Nevertheless, you should be aware of such changes in the law if circumstances create potential confusion or a desire to update your documents.
The New POA Act provides remedies for incapacitated persons against an agent who abuses his or her authority under the power of attorney document – a welcome change in the law. It also provides standing for the principal’s guardian, spouse, parent, descendant, or certain other individuals to petition a court to review an agent’s conduct if the principal lacks capacity to file such petition.
However, in replacing the Old POA Act, the New POA Act eliminates the previous statutory basis for clients to execute a power of attorney for health care decisions. The New POA Act expressly does not authorize a person (referred to as the “principal”) to delegate to an agent the power to make healthcare decisions for them. It does authorize the agent to access the principal’s health care information under HIPAA and communicate with the principal’s health care providers. An advance directive under the Oklahoma Advance Directive Act is still available for a person to make end-of-life decisions regarding life sustaining treatment and, specifically, administration of nutrition and/or hydration intravenously, in narrowly defined healthcare conditions (terminal condition, persistently unconscious condition, end stage condition). And, the Advance Directive Act allows for the appointment of a health care proxy (essentially an agent; same concept different label) with the delegated authority to make medical treatment decisions.
The new law has created confusion concerning what authority can be delegated to an agent in a power of attorney signed after October 31, 2021. It is our understanding the state legislature is working to remedy this confusion. Until they do so, we are adapting the new durable power of attorney form and the existing advance directive form to assist our clients in delegating authority to persons they trust to make decisions for them in the event of our client’s inability to make decisions for themselves due to an incapacitating illness or injury.
