What is a power of attorney?
A Power of attorney refers to an instrument authorizing another to act as one’s agent or attorney in fact.
1. Common Law Non-Durable Power of Attorney
“I authorize, John Doe, to perform and act which I could perform myself.”
“I authorize, John Doe, to sell my 1982 Ford Pickup and to sign my name on the title.”
A. Might find one of these in office supply store. Simply a written signed instrument authorizing another
person to act for you.
B. These are technically still valid, but generally will not be accepted by third parties. The acceptance of these by a third party is at their own risk.
There is no presumption of capacity of the principal or that the principal was not subjected to undue influence by the agent.
C. The power of attorney terminates at the principals death or incapacity. It may be revoked by the principal at any time.
2. Uniform Durable Power of Attorney Act 58 O.S. § 1071-1077
38 Sister States and Territories Have Same or Similar Law:
Alabama, Arizona, Arkansas, California, Colorado, Delaware, District of Columbia, Florida, Hawaii, Idaho, Kansas, Kentucky, Maine,
Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico,
New York, North Carolina, North Dakota, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virgin Islands, Washington,
West Virginia, Wisconsin.
Durability With Either Clause:
“This Power of Attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time.”
“This Power of Attorney shall become effective upon the disability or incapacity of the principal.”
1. Reference to Oklahoma Uniform Durable Power of Attorney Act, 58 O.S. §1071-1077
2. Effective Date
a. Immediately effective when signed; or
b. Effective upon future disability.
3. Listing of Powers.
4. Name of Attorney-in-Fact and Successor.
a. General — Complete
b. Limited — Specific Purpose
Presumption of Validity-This is the ONLY Power of Attorney that has Presumptions
· Principal understood nature and purpose of Power of Attorney
· Sound Mind
· Free Will
· Third Parties not required to determine if actually had sound mind, acted of free will and understood when signed
Witnesses Must Be
· 18 or over
· Not a relative by blood or marriage
· Not the Attorney-in-Fact or a relative by blood or marriage to Attorney-in-Fact
Not Required but often Recommended. Record at Office of County Clerk where you live and any county where Attorney-in-Fact may act
· Third Parties often request Powers of Attorney to be recorded
LEGAL RESULT OF ACTION TAKEN BY ATTORNEY-IN-FACT
· Same effect as if principal personally had taken the action
SUBSEQUENT APPOINTMENT OF A GUARDIAN
· Guardian may revoke Power of Attorney or leave it in place
· Attorney-in-Fact becomes accountable to Guardian
· Principal may nominate a Guardian for himself or herself in a Power of Attorney
TERMINATION OF POWER OF ATTORNEY
· Death of principal revokes Power of Attorney
· Principal during life may revoke:
— Written and oral notice to Attorney-in-Fact and third parties
— Recover and destroy original and all copies if possible
· Prior Powers of Attorney may be revoked by signing a new Power of Attorney if it contains a revocation clause
· Agent has duty to obey instructions of Principal
· Agent has duty to keep the Principal fully informed
· Accountable as a Fiduciary (like a banker who keeps your money)
· Agent has duty to exercise diligence and skill on behalf Principal. This means that if a transaction on behalf of a Principal is outside of the agent’s knowledge, the agent must first seek someone to advise him or her who has the necessary skill and diligence.
· Legal Duty of a Fiduciary
— Utmost good faith duty to act in best interest of principal
— Avoid self dealing and conflict of interest
— Conservative investment standard and avoid speculation
— Render an accounting to principal and if principal incompetent to persons who have a legal interest
· Legal Difficulties for Attorney-in-Fact
— Second guessed by other relatives and possibly subject to lawsuit for actions after principal deceased
— Attorney-in-Fact acts without protection of Court and any act can be questioned
· Hold Harmless Clause
— To help protect Attorney-in-Fact
· Compensation of Attorney-in-Fact
— The Attorney-in-Fact will often spend much time and expense on behalf of the Principal. Should the Attorney-in-fact be paid? This issue of compensation and reimbursement should be addressed in the power of attorney.
Financial Power of Attorney
· All powers granted by law
· Collection money or debts
· Real or personal property: sell, convey, lease, exchange, mortgage or release mortgages
· Borrow money and give collateral
· Convey property to existing trust
· Represent in Court
· Give receipts, consents, releases
· Deposit checks and funds in bank
· Pay bills, sign checks on account, withdraw funds
· Endorse checks
· Manage, hold and invest property
· Transfer or surrender stocks or bonds
· Access to safety deposit box
· Federal and State Tax Returns
· Oil, gas and other minerals – sign leases, division orders and other documents
· Hospital or Nursing Facility documents
· Medical insurance claim documents
· Making Gifts
— Who gets gifts? When can gifts be made? For what purpose?
HEALTH CARE DURABLE POWER OF ATTORNEY
· “No-Code” Do not resuscitate Order
· Consent or withhold approval for medical procedures
· Receive medical records and consent to disclosure to third parties
· Hire and fire doctors
· Admit or authorize discharge from hospital
· Compliance with Health Insurance Portability and Accountability Act of 1996 (a.k.a. HIPAA), 42 U.S.C. 1320(d) and 45 C.F.R. 160-164
SPECIAL PURPOSE POWER OF ATTORNEY
· Resign principal as Trustee of Trust
· Sell a house
· Manage a rent house
· Pay your bills
3. OKLAHOMA STATUTORY FORM DURABLE POWER OF ATTORNEY
· This power of attorney is a form set out in statute 15 O S §§1001, et. seq. Only 6 other states and territories have adopted this type of power of attorney. California, Colorado, District of Columbia, Montana, New Mexico and Wisconsin.
· Form is check the blank.
· The statutory form is effective immediately. You will have to add language permitting this power of attorney to be springing, or effective only upon your disability at a later date, if that is your desire. A method of how to determine your disability should be included.
· Not witnessed, but is notarized.
· This power of attorney DOES NOT provide for a presumption that the principal understands the nature and purpose of what he or she has signed, while of sound mind and free will.
· Statutory powers can be selected by checking the box. Customized powers can be added under the extension of powers clause.
· No provision is provided for a successor attorney-in-fact to be appointed.
· Power of attorney terminates at the death of the principal.
· This power of attorney is durable, meaning that it is still valid after incapacity.
· This form does not provide for the revocation of prior powers of attorney.
· Medical and health powers are not provided for under this power of attorney.
· Form requires that the principal disclose his or her social security number.
Brent Coldiron Attorney1800 E. Memorial Road Suite 106 Oklahoma City, OK 73131 USPhone: (405) 478-5655 Website: https://www.coldironlaw.com
By appointment at 2801 Parklawn Drive, Suite 503, Midwest City (405), telephone (405) 737-2244. Fax: (405) 478-5616.
SEEK LEGAL ADVICE
The foregoing is not intended as legal advice. You should always seek the advice of an attorney for the particular application of the law to your fact situation. It can be substantially different than the general rules of law illustrated herein.If you have questions you may call our office to schedule your free conference. Brent D. Coldiron is a frequent speaker to non-profit civic and church groups on legal topics of interest. If your group would benefit from such a presentation please do not hesitate to notify our office.