Guest column: New act lets Oklahomans execute health care power of attorney
The Oklahoma Legislature reinstated the durable power of attorney for health care through the adoption of Senate Bill 1596, which will again provide Oklahomans with an option to execute a health care power of attorney (HCPOA). SB 1596 was signed by Gov. Kevin Stitt on April 29, going into effect that same day, creating the new Oklahoma Health Care Agent Act and reinstating the HCPOA, complementing Oklahoma’s other existing health care decision-making laws.
Back on Nov. 1, 2021, the new Oklahoma Uniform Power of Attorney Act went in effect, which inadvertently repealed the Oklahoma statutory provisions that authorized executing a durable power of attorney for the purpose of making health care decisions. However, this legislative session, Sen. Howard and Rep. Stinson worked to reinstate those provisions through the creation of the new Oklahoma Health Care Agent Act. The Act provides Oklahomans with the ability to execute a HCPOA and name an agent to make health care decisions on behalf of the individual.
For those familiar with the prior durable power of attorney provisions, the new act, in substance, reinstates what was removed from the statutes last year. The following are the key elements of the act:
The HCPOA is activated when the person (aka the principal) no longer has capacity (the ability to understand and make informed decisions about health care) or whenever the principal determines it should be activated, but only as documented in the HCPOA. The HCPOA remains in effect even if the principal later becomes incapacitated.
The agent may make health care decisions for the principal, so long as those decisions align with:
any written instructions by the principal;
the principal’s best interests; or
the principal’s values to the extent known by the agent.
The health care decisions that can be made under a DPOA include:
Selecting and discharging health care providers and facilities;
Consent to or refusal of any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition; and
Signing a do-not-resuscitate consent in accordance with the provisions of the Oklahoma Do-Not-Resuscitate Act.
The act does not authorize the agent to make any life-sustaining treatment decisions, such as withholding or withdrawing nutrition and hydration.
The act establishes a new sample form Health Care Power of Attorney, which must be signed by the principal and witnessed by two individuals who are at least 18 years old and not legatees, devisees, or heirs at law of the principal.
The HCPOA no longer has to be notarized to be considered valid.
Finally, the act includes a provision providing that any HCPOA executed between Nov. 1, 2021, and April 29, 2022, will be considered a valid document, so long as the document complies substantially with the provisions of the act. If you executed a HCPOA during that timeframe, you should reach out to an attorney to determine whether the document substantially complies with the act and can be considered valid.
If you do not have a HCPOA and would like to execute one, you may contact an attorney, as well, to assist with preparation and execution. A HCPOA is an excellent way for you to designate who should be making healthcare decisions for you when you no longer are able to make those decisions for yourself.
By putting your wishes for your future health care in writing, via a HCPOA, you have taken steps to ensure those wishes will be honored to the extent possible.
Maggie K. Martin is an attorney with Crowe & Dunlevy, crowedunlevy.com, and a member of the Healthcare Practice Group. This column should not be understood as, or considered a substitute for, legal advice.
This article originally appeared on Oklahoman: Opinion: New act lets Oklahomans execute health care power of attorney
