The Elimination of the Oklahoma Durable Power of Attorney for Healthcare

Crowe & Dunlevy
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On November 1, 2021, House Bill 2548 will go into effect, establishing the new Oklahoma Uniform Power of Attorney Act. This new legislation repeals the provisions of the Uniform Durable Power of Attorney Act (DPOA Act) which have historically provided individuals the ability to execute a durable power of attorney for healthcare purposes. HB 2548 specifically removes the power to make healthcare decisions, limiting an individual’s options to proactively designate someone to make healthcare decisions on their behalf.
 
HB 2548 provides that the Uniform Power of Attorney Act applies to all powers of attorney except a power to make healthcare decisions. While HB 2548 contains provisions authorizing the agent appointed to make payment for necessary healthcare expenses and act as the principal’s personal representative under HIPAA for purposes of payment decisions, there are no provisions that give the agent the authority to make any healthcare decisions for the principal. In fact, the new sample power of attorney form explicitly states that the power of attorney does not authorize the agent to make healthcare decisions for the principal.

Elimination of the DPOA Act and the durable power of attorney for healthcare, leaves Oklahoma residents with limited options for appointing someone to make healthcare decisions on their behalf. The durable power of attorney for healthcare provided a mechanism for an individual to determine, prior to incapacity, that certain individual(s) should be authorized to make healthcare decisions on their behalf. In addition, one of the key elements of the DPOA Act was that it gave an individual the option to authorize the agent to serve as the individual’s legal representative under the Oklahoma Do-Not-Resuscitate Act (DNR Act). A legal representative under the DNR Act has the ability to sign a do-not-resuscitate consent form on behalf of the individual, and healthcare providers have consistently relied upon these duly appointed agents to change a patient’s code status to “do-not-resuscitate.” Further, the durable power of attorney for healthcare filled a gap in those instances where a patient was unable to make healthcare decisions and had not executed an advance directive, or had an advance directive but did not meet the qualifications for activation of the advance directive under the Oklahoma Advance Directive Act.  

Absent the ability to execute a durable power of attorney for healthcare, individuals can still execute an advance directive pursuant to the requirements of the Advance Directive Act. While the advance directive does authorize the identified health care proxy to make general healthcare decisions, the main purpose of the advance directive is to document an individual’s wishes regarding withholding or withdrawing life-sustaining treatment. If an individual has not executed an advance directive, the Oklahoma surrogate decision maker law provides an option to rely upon family to make general healthcare decisions for a patient, but does not confer any authority upon the surrogate to be a legal representative under the DNR Act, as was provided by the DPOA Act.

Once HB 2548 becomes effective on November 1, any durable power of attorney for healthcare executed after that date will not be considered valid. However, any document that was executed prior to November 1, so long as it met the requirements of the DPOA Act upon the date of execution, is still considered valid and can be relied upon by healthcare providers. We recommend healthcare providers put in place processes to ensure appropriate review of durable power of attorney documents provided by patients, especially those that will be executed after November 1, 2021.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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