On November 1, 2021, House Bill 2548, the Oklahoma Uniform Power of Attorney Act (New law), will go into effect. This not only establishes a new set of standards and definitions for the power of attorney, but also repeals the previously set standards under the Uniform Durable Power of Attorney Act (Old law) regarding the Power of Attorney for healthcare decisions.
The act was created to more closely align Oklahoma’s power of attorney laws with those of 30 other states, and to ease complications when health care decisions need to be made out of state. For example, you may have assigned someone your power of attorney to make health care decisions for you in the event of your incapacitation. You created that agreement in accordance with Oklahoma law. However, if you got injured while on a ski trip out of state and your agreement did not comply with their laws, you wouldn’t have a power of attorney. Additionally, it required health care workers to make the legal judgment call of whether or not your agreement was sufficient.
What does the new law do?
The new law repeals the portion of the old law which gave individuals the ability to appoint a power of attorney for healthcare purposes. Under the old law, individuals could be proactive about their healthcare decisions and designate someone to make those decisions on their behalf in the event of their incapacitation. Under the new law, even if you have a power of attorney, you may still need a health care proxy to make decisions about certain life sustaining treatments.
When you designate someone to be in charge of your health care, you would typically choose someone close to you to be in charge of all of your major health care decisions (such as a health care proxy). This way, if you were to become unable to make your own choices about your healthcare, there would be someone close to you who could handle all of your medical decisions and doctors would know who to go to for those difficult questions.
A key feature of the old law was the ability to appoint an agent as their legal representative under the Oklahoma Do Not Resuscitate Act (DNR Act). Under the Oklahoma DNR Act, a legal representative has the ability to sign a do not resuscitate consent form, which has provided health care professionals the directive they need to change a patient's status to do not resuscitate.
Individuals were given the ability to grant an agent either total or limited authority over healthcare decisions. However, under the old law, agents could not make life-sustaining treatment decisions. This means that if you required a feeding tube to stay alive, your agent didn't have the power to tell health care professionals to stop providing you the feeding tube (unless you had an advanced directive). This power was reserved for a health care proxy (usually a close family member).
A health care proxy requires a different legal agreement and has a different set of standards. An agent could receive the power to make life-sustaining treatment decisions as long as the power of attorney agreement complied with the health care proxy requirements under the Oklahoma Rights of Terminally Ill or Persistently Unconscious Act.
House Bill 2548 Removed the Ability to Designate a Power of Attorney for Health Care Decisions
The new law ensures that the Uniform Power of Attorney Act will apply to all powers of attorney, except for the power to make healthcare decisions. Not only does the new law not include a provision providing an agent the ability to make healthcare decisions, but it also went so far as to include a sample form explicitly prohibiting the agent from making healthcare decisions for the principal (the patient). Under the new law, a power of attorney may retain some powers related to healthcare. A power of attorney would still have the ability to arrange payment for healthcare purposes under their financial powers, and they can act as the principal's personal representative under HIPAA to make these financial decisions.
The new law leaves a gap previously covered by the old law
The passage of House Bill 2548 leaves open a gap that the old law handled effectively. The old law allowed for individuals who were unable to make healthcare decisions and were never able to execute an advanced directive to have some degree of medical representation. It also permitted individuals to have an agent even if their advanced directive did not meet the qualifications for activation under the Oklahoma Advance Directive Act. The new law has not considered these instances, and it doesn't protect an individual in these circumstances.
The new law does not change the Advance Directive Act
Establishing power of attorney for healthcare decisions isn’t, and hasn’t been, the only option for ensuring someone else handles your health care choices when you are unable to. Other options, such as an advance directive, remain in place and are not affected by the new law. This means that individuals still have the option to execute an advance directive authorizing the identified health care proxy to make general health care decisions.
Many people refer to an Advance Directive as a “living will.” It establishes whether you would like your life extended by life-sustaining treatment as well as who your health care proxy will be. A health care proxy is most normally either a spouse or an adult child. Under the Advance Directive Act, they are authorized to make any health care decisions you would be able to make yourself, and your physician is directed to follow the direction of your health care proxy.
The new law does not nullify any Power of Attorney agreements entered into before November 1st
If you have a prior existing durable power of attorney, the new law will not nullify your existing agreement. Additionally, any durable power of attorney agreement entered into between the passage of the new law and when it goes into effect on November 1st will remain in legal effect. However, any durable power of attorney agreement entered into after November 1st will be considered invalid for healthcare purposes.
The Bottom Line
The passage of House Bill 2548 will not affect pre-existing power of attorney arrangements. However, starting November 1st, any new agreements designating a power of attorney for health care decisions will be invalid. While it provides fewer options when making arrangements for end-of-life care, it doesn't leave you without the ability to plan.
This bill will not affect health care proxies, which are still a viable option for your health care planning. While the bill was intended to create uniformity amongst the individual states, it does leave open a few gaps that could result in problems if you do not have a lawyer review your plans for end-of-life care.
If you have questions on how to best set up your end-of-life healthcare, contact us, and we can set up a plan that will protect you.