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Understanding Powers of Attorney

Posted by Renee Kendall | Oct 05, 2023 | 0 Comments

A Power of Attorney (POA) is an estate planning tool where you, the principal, appoint a person, known as the agent, to manage your affairs. Typically, the POA is appointed to manage financial or medical matters when you cannot do so yourself because you are incapacitated by illness or injury. 

Durable Power of Attorney

A Durable Power of Attorney authorizes another person (your agent) to make decisions concerning your property for you. Your agent will be able to make decisions and act with respect to your property (this includes your finances). When you create your POA, you will be able to specify any limitations that you may want in place for your agent, and you can specify any special instructions, if you wish.  A POA takes effect immediately upon your signature unless the POA states otherwise and allows your agent to continue acting on your behalf even when you are incapacitated. A POA terminates only when you die or when a revocation of a POA form is issued. You may revoke your POA at any time, by destroying your POA forms and notifying anyone who may have copies of your forms.

Healthcare Power of Attorney

A Healthcare Power of Attorney lets you name an individual as your agent to make health care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable. You may also name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. Unless related to you, your agent cannot be an owner, operator, or employee of a residential long-term health care institution at which you are receiving care. You can also revoke your Healthcare Power of Attorney at any time.

Your designated agent may make all healthcare decisions for you unless you set limits in your Healthcare Power of Attorney. If you choose not to limit the authority of your agent, they will have the right to:

  1. Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition.
  2. Select or discharge health care providers and facilities; and
  3. Sign a do-not-resuscitate consent.

Your Healthcare Power of Attorney does not authorize the agent to make any decisions directing the withholding or withdrawal of life-sustaining treatment, nutrition, or hydration, which may only be authorized in compliance with the Oklahoma Advance Directive Act, except that this form may authorize the agent to sign a Do Not Resuscitate consent.

When you complete your Power of Attorney forms, it is required that two other individuals sign as witnesses. These witnesses must be at least 18 years old and not related to you or named to inherit from you. Our office will provide you with copies of your new Power of Attorney forms, and you will need to give a copy to your physician, any healthcare facility you are receiving care, and to the individual that you named your Power of Attorney. You should talk to the person that you have named as agent to make sure that they understand your wishes and are willing to take the responsibility.

When is a Power of Attorney Necessary

A Power of Attorney is a useful tool for people who are planning their estate but who are losing the ability to understand the repercussions of their decisions and actions. By giving an agent the power to make those decisions, a principal can rest assured that someone is taking care of them.

A POA is common in the following situations:

  • The principal suffers from a worsening medical condition that impacts their mental capacity, like Alzheimer's or dementia
  • The principal is physically disabled and cannot sign important documents
  • The principal wants to give someone else the power to make specific decisions on their behalf

There are, of course, other reasons why you may need or want a power of attorney created. Speaking to an estate planning attorney is the best way for you to identify and determine what will work best for you.

How is a Power of Attorney Created

Each state has its own requirements for creating a Power of Attorney, though most are based on the parties and witnesses signing a Power of Attorney form. Because having the power to make financial and medical decisions for someone else is such a serious matter, each state incorporates formalities that must be followed to: 

  1. Ensure the power of attorney is legitimate; and 
  2. Confirm the person relinquishing their rights is doing it knowingly and voluntarily. 

Oklahoma requires two witnesses along with notarization for a Durable Power of Attorney, and two witnesses (no notarization) for a Healthcare Power of Attorney.

Challenges to a POA

A family member or another close person is usually listed as the power of attorney. Sometimes, problems or conflict arises, leading to another family member disputing the POA. There are three possible ways to challenge a POA.

  1. The principal is mentally incompetent. The principal of the POA is the one who grants a power of attorney, and the principal gets to choose who that POA is. If a family member wants to revoke or contest the POA, then proving the principal was mentally incompetent (e.g., has dementia, a psychiatric issue, or another form of mental incapacity) is one way it might be done. This type of dispute is often determined by the winner of the battle of the experts.
  2. Formalities were not followed. POAs require a number of formalities, which vary by state. Failure to follow or satisfy the formalities can mean the POA is invalid. You want to look out for specific language that's required by state law, signature and witness requirements, and notarization requirements.
  3. Agent abused authority. Agents are the ones chosen by the principal to act as their POA. When an agent abuses this authority, a POA can be challenged. Examples of abuse include stealing the principal's assets, mismanaging assets, or neglecting the principal's needs altogether. This type of dispute can be difficult to prove because often it's a matter of he-said, she-said.

Having an attorney to help you with the POA is one way to help prevent disputes in the future.

We always believe that our clients make better choices for themselves and their loved ones when they are well-informed and adequately prepared. Contact us directly at 580-782-3348 or send us a message online to schedule an appointment with our attorney, and we can ensure that you have peace of mind in regards to your future care.

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