Many of my clients have asked me about powers of attorney. In Oklahoma law, “Power of Attorney” means, “a writing or other record that grants authority to an agent to act in the place of the principal.” If you execute a power of attorney, you are the principal. The person whom you designate to act in your place is your agent. Although the term “power of attorney” is used, your agent does not have to be a licensed attorney.
· A Power of Attorney grants someone else the authority to act in your place
· A durable power of attorney will remain in effect when you become incapacitated
· If you execute a power of attorney that conforms with Oklahoma law, a person must accept the power of attorney, and you can sue them if they don’t accept it
· The Oklahoma legislature has created a free downloadable power of attorney form
People use powers of attorney for many reasons. If you’re going to be outside the country for an extended period of time, you may want to give someone power of attorney so that your agent may manage your finances and your bank account in the U.S. while you are away. If you become incapacitated, you may need a power of attorney so that someone can transact business for you where you’re unable to transact business yourself. If you have assets in another state, you may want to designate a power of attorney in that state, so that you won’t have to travel to manage your assets in a distant state. Or, if you’re involved in a very complex transaction that you can’t understand, you may want to appoint a competent professional to handle the transaction for you.
Oklahoma Power of Attorney Form
In 2021, the Oklahoma legislature passed the Uniform Power of Attorney Act. (UPOAA) As of this writing, 29 states have enacted the UPOAA, and the UPOAA has been introduced in several other states. (Click here to see which states have passed the UPOAA, and which states are considering it.)
The UPOAA creates a power of attorney form. To download the power of attorney form, click here or here. If you fill in the blanks on this form and sign as directed, you will have created a valid power of attorney.
However, this form is not required to create a power of attorney. Under the UPOAA, all that is necessary to create a legally effective power of attorney is:
· You must sign the power of attorney, or
· You must direct someone else to sign your name on the power of attorney. This person must sign in your “conscious presence.”
· A signature on a power of attorney is “presumed to be genuine” if a notary public, or other person authorized by law to take acknowledgments, witnesses your signature.
The UPOAA also says that if you, or your agent, presents the power of attorney to anyone (such as a bank), they have to accept the power of attorney, and they can be sued if they refuse to accept it. The UPOAA has two versions: Alternative A and Alternative B. Under Alternative A (which Oklahoma has adopted) a person must accept any power of attorney that is properly signed under the UPOAA. Under Alternative B, a person must accept the power only if the power is drafted on the downloadable form. If you are outside of Oklahoma, check your state’s law to see if your state has adopted Alternative A or Alternative B.
If you present the power of attorney to anyone, the person must accept the power within seven business days. However, they have the right to ask for:
· The agent to certify, under penalty of perjury, any fact relating to the principal, agent, or power of attorney
· An opinion from an attorney regarding any matter of law concerning the power of attorney, and
· An English translation of the power of attorney, if the power is not in English.
The principal must pay for the legal opinion, or the English translation if the opinion or translation is requested within seven days after the power is presented. After the person receives a certification under penalty of perjury, a legal opinion, or an English translation, they must accept the power within five days.
After you present someone with a power of attorney, they may refuse to accept the power only if:
“(1) the person is not otherwise required to engage in a transaction with the principal in the same circumstances;
(2) engaging in a transaction with the agent or the principal in the same circumstances would be inconsistent with federal law;
(3) the person has actual knowledge of the termination of the agent’s authority or of the power of attorney before exercise of the power;
(4) a request for a certification, a translation, or an opinion of counsel is refused;
(5) the person in good faith believes that the power is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification, a translation, or an opinion of counsel has been requested or provided; or
(6) the person makes, or has actual knowledge that another person has made, a report to the local adult protective services office stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent.”
Under the UPOAA, if you create a power of attorney that complies with the law of the state where you created the power, the power is legally valid in any state that has adopted the UPOAA. (This is true, even if the power doesn’t comply with the UPOAA, as long as the power was valid in the state where the power was created.)
Types of power of attorney
There are two types of power of attorney in Oklahoma -- one is called a "power of attorney" and the other is called a "health care power of attorney."
Durable Power of Attorney – Oklahoma
A durable power of attorney (DPOA), is a power of attorney that remains in force, even after the principal becomes incapacitated. The UPOAA says, “A power of attorney created under this act is durable unless it expressly provides that it is terminated by the incapacity of the principal.” If you are planning your estate, you may want to execute a durable power of attorney, so that someone may manage your property if you become incapacitated.
One type of durable power of attorney is a “springing” durable power of attorney. A springing durable power of attorney “springs” into effect when you become incapacitated. However, a springing durable power of attorney does not take effect until you become incapacitated. If a durable power of attorney is not springing, the durable power of attorney will take effect the moment you have signed it. To create a springing durable power of attorney using the downloadable form, simply state, in the “Special Instructions” that you want the power of attorney to take effect upon your incapacity.
Health Care Power of Attorney – Oklahoma
The UPOAA does not apply to a power to make health care decisions.
Therefore, the Oklahoma state legislature has created the "health care power of attorney". In a health care power of attorney, you name someone to make medical decisions for you. Read more about health care powers of attorney here.
It is definitely wise for you to consider creating a power of attorney so that someone can take care of your property if you are unable to. The Persaud Law Office has created powers of attorney for many people. If you would like us to help you create a power of attorney, contact us today.
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