The durable power of attorney is critical for protecting a person’s interests in the event that he or she becomes ill or incapacitated. Along with the living will and the health care proxy, this document ensures that the principal’s wishes regarding the management of his or her affairs will be respected, even though the principal may not be able to act for him-or herself. Without a durable power of attorney there is the risk that an ill or incapacitated person’s affairs would be managed by a court supervised stranger. Traditionally, a common law power of attorney was perceived to have limited usefulness because it did not survive the death or disability of the principal. This led to the creating of the Oklahoma Uniform Durable Power of Attorney Act and the durable power of attorney, so named because it survives the principals’s incapacity.
58 OS §1072 of the Oklahoma Uniform Durable Power of Attorney Act provides for a durable power of attorney by including special language in the power of attorney document:
A durable power of attorney is a power of attorney by which a principal designates another his attorney-in-fact in writing and the writing contains the words “This power of attorney shall not be affected by subsequent disability, incapacity, or extended absence of the principal, or lapse of time”, or “This power of attorney shall become effective upon the disability, incapacity, or extended absence of the principal”, or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal’s subsequent disability, incapacity, or extended absence, and, unless it states a time of termination, notwithstanding the lapse of time since the execution of the instrument.
The Oklahoma Uniform Durable Power of Attorney Act requires that the witnesses to the execution of the power of attorney shall be at least eighteen years of age, not be related to the principal by blood or marriage. Witnesses cannot be the attorney-in-fact or anyone related to the attorney-in-fact by blood or marriage.
The Oklahoma Uniform Durable Power of Attorney Act also provides a certain form to be used for the execution of the power of attorney. If the form is followed there is a statutory presumption that the principal understands the nature and purpose of the power of attorney and has executed it while of sound mind and of free will. There is a substantial advantage to using a knowledgeable and experienced attorney. Never use a form off the internet. It may fail you when the power of attorney is needed.
If you need an experienced attorney, contact Brent D. Coldiron, attorney at law, 1800 E. Memorial Road, Suite 106, Oklahoma City, OK 73131 or 2801 Parklawn Drive, Suite 503, Midwest City, OK 73110; telephone (405) 478-5655 and 737-2244. Brent has over 42 years experience handling a variety of legal matters, including durable powers of attorney, probates, will, trusts, business formation, elder law, Medicaid qualification for nursing home care and protection of resources, corporations and guardianships. Give Brent a call, he knows what to do!