Tulsa Attorney BlogWhat is a Power of Attorney in Oklahoma?

POA Make Financial or Medical Decisions on Someone Else’s Behalf

Video Transcribed: What is a power of attorney in Oklahoma? I’m Tulsa Power of Attorney Lawyer James Wirth, and we’re talking about the power of attorney document as it relates to estate planning. So, under Oklahoma law, you can have a power of attorney, a document that you have drafted up that you sign off on, and that gives somebody else authority to make decisions on your behalf. Now, the difference between a power of attorney and guardianship is that, in a guardianship, you would have to be determined to be incapacitated.

You lose your right to make those decisions. The guardian gets those rights to make those decisions, and it’s a court order. So, they’ve got a court order they can show people and people need to follow that court order and acknowledge that you have the right to make those decisions. So, with the power of attorney, the person that is giving power of attorney to another person, they are not giving up their rights to make those decisions.

They remain to have the capacity, can make their own decisions. They can revoke the power of attorney at any time, but it adds you on as being able to make those decisions. And you’ve got a document, but it’s not entered by a court. It’s not signed by a judge.

It’s just signed by the person that is authorizing that delegation of authority and perhaps witnesses and attorney in Oklahomanotary public signing off on that. But the laws regarding powers of attorney do not require that other people accept that. They provide that there is indemnity should they accept that power of attorney to their peril, but they don’t have to accept it.

So, sometimes we have people that have a power of attorney, they take it to the bank, the bank won’t recognize their power of attorney. The bank’s got the right to refuse that. You can’t force that under the law.

So, that’s a power of attorney. There are also different types of power of attorney. You can have one that is immediately effective upon signing, or you can have one that is springing. You can have a regular power of attorney or durable power of attorney.

So, for a regular power of attorney, it is only effective so long as the person who granted the power of attorney has legal capacity. If that person becomes legally incapacitated and therefore loses the ability to withdraw that power of attorney, that power of attorney automatically ceases to exist at that point.

It is not functional at that point. It is done. It is not operational. From that point, if somebody wants to make decisions on behalf of the person that’s now incapacitated, they have to file a guardianship. That’s a court process, costs money, takes time, real hassle, so you want to avoid that if you can.

So, most of the time when you’re doing estate planning, you don’t do a regular power of attorney because you don’t want it effective immediately, and you don’t want it ineffective as soon as you’re incapacitated. So, you do a durable power of attorney.

Most of the time that would be a springing durable power of attorney. So, the fact that a power of attorney is durable means that it exists after the person becomes incapacitated. It continues to be operational.

That person can continue making decisions for you even after you’re incapacitated. The part where it’s springing means it’s not activated immediately once it’s signed. It only becomes effective once the person who gave that authority is determined to be incapacitated. From that point forward, it is in place until a guardianship is entered by a court, a court invalidates the power of attorney, or the person passes away.

In any case, no power of attorney lasts beyond the death of the person. Once somebody dies, in order to get authority to act on behalf of the person’s estate, you have to file probate or a petition for intestate succession action, request to be appointed as the personal representative.

So, all of this relates to estate planning and how to handle those things. If you’ve got questions about that and your particular circumstances, talk to an attorney confidentially about that. Give all the details so you can get advice on what’s best for your scenario. To get that scheduled with somebody at my office, you can go online to makelaweasy.com.

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