A Word About Granting A Power Of Attorney
A power of attorney (“POA”) allows someone else to handle your legal, financial, or medical matters. General powers of attorney cover a wide range of transactions, while limited powers of attorney cover only specific situations, such as authorizing a car dealer to register your new vehicle for you. The person or institution granted the power of attorney authority may be granted power to make decisions about real property transactions, tangible personal property, stocks, bonds, commodities, banking transactions, business operating transactions, insurance, estates and trusts, claims and litigations, personal and family maintenance, benefits from Social Security, Medicare, and other governmental programs, retirement plans, and tax matters.
A person who is acting under a regular type of power of attorney will lose their authority if you become mentally incompetent. That is when the need for a Durable Power of Attorney is needed. A proxy is a fancy way of saying you give someone your authority or power to act. A document giving such authority specifically is a power of attorney authorizing a specified person to act for another.
Durable Power Of Attorney
A Durable Power of Attorney is in effect when you are both cognizant and incapacitated. A more limited form a Durable Power of Attorney is the Springing Durable Power of Attorney. Which means it only takes effect after you are incapacitated. Generally, there is some sort of formal procedure. A common practice is to include language that requires a doctor’s certification of mental incompetence or incapacitation. So, it is important to understand how “incapacitated” is defined in your legal documents.
Oklahoma has adopted the Uniform Durable Power of Attorney Act. The purpose of a Durable Power of Attorney is to plan for situations where you are no longer capable of making decisions. A durable power of attorney uses specific words showing your intent for the authority to continue even with your later disability, or incapacity. In Oklahoma the durable power of attorney may show when it is to be effective, the scope of powers being authorized, and who will be authorized to exercise the power, including any successor attorney-in-fact if the prior attorney-in-fact dies, ceases to act, refuses or is unable to serve, or resigns.
The durable power may grant your attorney-in-fact complete or limited authority with respect to your person. This includes health and medical care decisions and even your do-not-resuscitate consent. One big caveat is worth noting. Under Oklahoma law, there are very specific requirements related to a healthcare power of attorney. And for that reason, it is often preferred for healthcare power of attorney to be a standalone document which is often referred to as an advance directive or living will.
You can see that because an advance directive and living will only address healthcare decisions, it might be confusing for a bank to attempt to address those issues in a Durable Power of Attorney. Think of the confusion around a reference requiring a physician(s) determination about the individual decision-making ability regarding medical treatment. You could see how the banker may mistakenly want to consider what the doctor said about financial decisions. The point is, financial decisions and medical decisions should be separate and distinct from one another. The banker has no interest in the medical directives and the doctors have no interest in the financial directives.
In summary, the durable power of attorney is a general power of attorney that gives another person you name as your agent with the power to deal with any of your assets in case of legal incapacity. For this reason, it is important that the agent is trustworthy and capable of handling the affairs without direct supervision. If a person’s assets are worth over one million dollars, they might consider having a bank or trust company manage their financial affairs. The nature of these durable power of attorney decisions can be wide-ranging, but generally do not include matters of life-sustaining treatment or artificially-administered nutrition since those are covered in advance directive and living will.
Towards the end of life, one of the greatest challenges for many people is the loss of control. Throughout my career, I have observed many people try to hold on to their idea of independence and make irrational decisions as a result. One can only hope that these individuals are surrounded by people who genuinely care about their well-being, and will act accordingly.
For more information on Durable Power Of Attorney in Oklahoma, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (918) 565-0070 today.