Healthcare Power of Attorney Reinstated in Oklahoma

The Oklahoma Legislature reinstated the durable power of attorney for healthcare through the adoption of Senate Bill 1596, which will again provide Oklahomans with an option to execute a healthcare power of attorney (HCPOA). SB 1596 (emergency legislation approved by Governor Stitt on April 29, 2022) was authored by Senator Brent Howard and Representative Preston Stinson and creates the new Oklahoma Health Care Agent Act. The Act reinstates the HCPOA and complements Oklahoma’s other existing healthcare decision-making laws.

Last year, on November 1, 2021, the new Oklahoma Uniform Durable Power of Attorney Act took effect, which inadvertently repealed the Oklahoma statutory provisions that authorized executing a durable power of attorney for the purpose of making healthcare decisions. However, this legislative session, Sen. Howard and Rep. Stinson worked to reinstate those provisions through the creation of the new Oklahoma Health Care Agent Act. The Act, which can be found at 63 Okla. Stat. §§ 3111.1 – 3111.13, provides Oklahomans with the ability to execute a HCPOA, naming an agent to make healthcare decisions on behalf of the individual.

For those familiar with the prior durable power of attorney provisions, the new Act, in substance, reinstates what was removed from the statutes last year. The following are the key elements of the Act:

  • The HCPOA is activated when the person (aka the principal) no longer has capacity (the ability to understand and make informed decisions about health care) or whenever the principal determines it should be activated, but only as documented in the HCPOA. The HCPOA remains in effect notwithstanding the principal’s later incapacity.
  • The agent may make healthcare decisions for the principal, so long as those decisions align with:
    • Any written instructions by the principal;
    • The principal’s best interests; or
    • The principal’s values to the extent known by the agent.
  • The healthcare decisions that can be made under a DPOA include:
    • Selecting and discharging health care providers and facilities;
    • Consent to or refusal of any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition; and
    • Signing a do-not-resuscitate consent in accordance with the provisions of the Oklahoma Do-Not-Resuscitate Act.
  • The Act DOES NOT authorize the agent to make any life-sustaining treatment decisions, such as withholding or withdrawing nutrition and hydration.
  • The Act establishes a new sample form Health Care Power of Attorney which must be signed by the principal and witnessed by two individuals who are at least 18 years old and not legatees, devisees, or heirs at law of the principal.
  • The HCPOA no longer has to be notarized to be considered valid.

Finally, the Act includes a provision which provides that any document made in substantial compliance with the requirements of the Act, including those documents executed prior to the effective date of the Act, shall have full force and effect. This means that if a principal executed a HCPOA between November 1, 2021 and April 29, 2022, and it complies substantially with the provisions of the Act, it would be considered a valid document.

Healthcare providers will need to ensure that they have appropriate processes in place to review HCPOA documents for validity and maintain such documents in the patient’s medical record. If you have any questions about HCPOA documents or SB 1596, please contact Maggie K. Martin or another member of the Healthcare Practice Group.

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