Changes to Affect Ability to Designate Healthcare Decision-Makers

Oklahomans will soon be unable to appoint a designee to make health care decisions on their behalf in the form of a power of attorney. Nov. 1 marks the date House Bill 2548 goes into effect, legislation that establishes Oklahoma’s new Uniform Power of Attorney Act. The change repeals the Uniform Durable Power of Attorney (DPOA) Act previously used to designate a representative to make healthcare decisions on another person’s behalf.

Although HB 2548 contains provisions for an agent to make payment of medical expenses and act as a personal representative under HIPAA for payment decisions, there are no mechanisms for the agent to make healthcare decisions for the individual. 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.

The repeal of the DPOA Act leaves limited options for individuals to identify who can make healthcare decisions on their behalf when incapacitated and no longer able to do so. For example, the DPOA Act gave an individual the power to authorize an agent to make general healthcare decisions and serve as the individual’s legal representative under the Oklahoma Do-Not-Resuscitate Act (DNR Act). A legal representative under the DNR Act may 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,” ceasing certain lifesaving medical interventions.

The DPOA Act also filled a gap in situations where a patient was still able to make healthcare decisions but wanted to authorize another to make those decisions for them, as the DPOA could become effective upon signing. In addition, a DPOA was relied upon in situations where a patient had executed an advance directive but did not meet the qualifications for its activation under the Oklahoma Advance Directive Act.

An advance directive gives an individual the right to express their written wishes for life-sustaining treatment in advance of incapacity and identify a healthcare proxy to make general healthcare decisions. However, the advance directive can only become activated if two physicians determine that the patient is unable to make healthcare decisions. 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.

Any durable power of attorney for healthcare executed after Nov. 1 will no longer be considered valid. However, anything signed before Nov. 1 can still be relied upon as long as it met the requirements of the DPOA Act when executed.

In anticipation of these changes, healthcare providers should put processes in place to ensure the appropriate review of advance planning documents provided by patients, especially those executed after Nov. 1.

This article first appeared in The Journal Record on October 29, 2021, and is reproduced with permission from the publisher.