What is a Durable Power of Attorney?
A durable power of attorney (“DPOA”) authorizes others to act on your behalf. The power of attorney can be broad or restricted to specific activities, and may be effective immediately or upon proof of incapacity.
The Oklahoma Legislature changed the DPOA laws; you should be aware the changes regarding the scope, effective date, and durability of Oklahoma power of attorneys.
What should I know about the updated laws regarding DPOAs?
- Your DPOA executed before the update is likely still effective.
The Oklahoma Legislature included a provision in the new laws ensuring valid DPOAs signed before the update to the laws are still effective. The new Uniform Power of Attorney Act provides: “A power of attorney executed in this state before the effective date of this act is valid if its execution complied with the law of this state as it existed at the time of execution.” A DPOA executed outside of Oklahoma is also still valid if it complies with the laws of the state where it was signed or complies with applicable laws regarding military powers of attorney.
- The new DPOA forms contains a list of specific powers.
The new statutory form contains a list of specific powers the signer must initial to grant to the person appointed as power of attorney. These specific powers include designating beneficiaries of assets, changing estate plans, making gifts, appointing an agent, and accessing electronic communications. If these powers are not initialed, the specific powers are not granted to the appointed power of attorney.
- The new DPOA is automatically immediate.
The new statutory form provides the power of attorney is effective immediately once it is signed and notarized. The person signing the power of attorney must specifically state the power of attorney will be effective only on a particular condition (like incapacity) if the signer does not want the power of attorney to be immediate.
- The new Power of Attorney is automatically durable.
The new statutory form automatically survives incompetence or incapacity. This means the power of attorney is still effective, even if the signer is later deemed incompetent or incapacitated. This allows the power of attorney more utility, as it allows the agent to contact banks or other entities on the signer’s behalf when the signer cannot.
The signer must specifically state the power of attorney ends on incapacity (or another condition), if the signer does not want the power of attorney to be durable.
- Third parties, like a financial institution, may be liable for attorney’s fees and costs, for disregarding powers under a DPOA.
If a third party, like a bank, refuses to acknowledge a DPOA even after the agent certifies the DPOA is valid, the third party may be liable for attorney’s fees and costs incurred asking a court to order the third party to acknowledge the agent’s authority under the DPOA.
A Durable Power of Attorney remains a key component of our custom estate plans. Complete our convenient online and confidential estate planning worksheet now, and we’ll contact you to schedule a free consultation at our offices. For more information on how we can help you get your estate planning done, see Estate Planning Made Easy with Rainey Law, LLP.