Req. No. 9025 Page 1
STATE OF OKLAHOMA
2nd Session of the 58th Legislat ure (2022)
HOUSE BILL 3343 By: Worthen
AS INTRODUCED
An Act relating to power of attorney; enacting the
Medical Uniform Durable Power of Attorney Act of
2022; providing applicability to a ll powers of
attorney concerning health and medical care decisions
executed in conformity with the requirements of this
act; providing that all powers of attorney concerning
health and medical care decisions validl y executed
prior to the effective date are valid and enforceable
according to the statutory provis ions in effect at
the time of execution; providing that all powers of
attorney for health and medical care decisions in
accordance with a certain statute afte r and before a
specified date are valid an d enforceable; defining
term; identifying permissible co ntents of durable
power of attorney; identifying scope of the durable
power of attorney; providing procedures by which a
durable power of attorney may be executed; providing
form; establishing presump tion upon execution;
avoiding recordation; specifying me thod of execution
after a certain date; validating certain powers of
attorney; providing rule of construction; providing
length of time for extended absence; requiring
commencement of certain proceedi ngs if extended
absence exceeds certain time period; making durable
power of attorney not affected by disability,
incapacity, or extended absence of the principal;
stating relation of attorney -in-fact to court-
appointed fiduciary; providing that a power of
attorney not be revoked until notice; stating effect
of affidavit of attorney-in-fact; providing for
uniformity of application and construction; amending
58 O.S. 2021, Section 3045, which relates to the
Uniform Power of Attorney Act of 2021; clarifying
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effective date; providing for codification; providing
an effective date; and declaring an emergency.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Stat utes as Section 3050 of Title 58, unless there
is created a duplication in numbering, reads as follows:
A. Sections 1 through 10 of this act shall be known and may be
cited as the "Medical Uniform Durable Power of Attorney Act of
2022".
B. The provisions of this act shall be applicable to all powers
of attorney for health and medical care decisions executed in
conformity with the requirements this act.
C. All powers of attorney for health and medical care decisions
validly executed prior to the effective date of this act shall be
valid and enforceable according to the statutory provisions in
effect at the time the powers of attorney for health and medical
care decisions were executed.
D. All powers of attorney f or health and medical care decisions
executed on or after November 1, 2021, but no later than the
effective date of this act, that were executed in accordance with
the requirements of Section 1071 et seq. of Title 58 of the Oklahoma
Statues are valid and e nforceable according to those statutes.
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SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3051 of Title 58, unless there
is created a duplication in numbering, reads as follows:
A durable power of attorney is a power of attorney by wh ich a
principal designates another his attorney-in-fact in writing and the
writing contains the words "This power of attorney sh all not be
affected by subsequent disability, incapacity, or extended absence
of the principal, or lapse of time ", or "This power of attorney
shall become effective upon the disability, incapa city, or extended
absence of the principal ", or similar words sh owing the intent of
the principal that the authority conferred shall be exercisable
notwithstanding the principal 's subsequent disability, incapacity,
or extended absence, and, unless it state s a time of termination,
notwithstanding the lapse of time since the execution of the
instrument.
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3052 of Title 58, unless there
is created a duplication in numbering, reads as follows:
A. The durable power of attorney may show or state:
1. The fact of execution under the provisions of the Medical
Uniform Durable Power of Attorne y Act;
2. The time and conditions un der which the power is to become
effective;
3. The extent and scope of the powers conferred; and
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4. Who is to exercise the power, including any successor
attorney-in-fact, if a prior appointed attorney -in-fact dies, ceases
to act, refuses or is unable to se rve, or resigns.
B. The power may grant complete or limited authority with
respect to the princ ipal's:
1. Person, including, but not limited to, health and medical
care decisions and a do -not-resuscitate consent on the principal's
behalf, but excluding:
a. the execution, on behalf of t he principal, of a
Directive to Physicians, an Advance Directive for
Health Care, Living Will, or other document, except an
Oklahoma standardized format physician orders for
life-sustaining treatment form in accordance with t he
provisions of this act, purp orting to authorize life -
sustaining treatment decisions, and
b. the making of life-sustaining treatment decisions
unless the power complies with the requirements for a
health care proxy under the Oklahoma Advance Directive
Act or the Oklahoma Do-Not-Resuscitate Act; and
2. Property, including homestead property, wheth er real,
personal, intangible , or mixed.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3053 of Title 58, unless there
is created a duplication in numbering, reads as follows:
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A. A durable power of attorney may be executed in accordance
with the following provisions; provided, however, failure to execute
a power of attorney as prescribed in this s ection shall not be
construed to diminish the effect or validity of an otherwise
properly executed durable power of attorney:
1. The principal shall sign the power of attorney at its end,
or, if the principal is u nable, some other person shall subscribe
his or her name thereto in his or her presence and by his or her
direction. The principal, or such other person, shall sign in the
presence of two witnesses, each of whom shall sign his or her name
in the presence of the principal and each other;
2. The witnesses shall not be:
a. under eighteen (18) years of age,
b. related to the principal by blo od or marriage, or
c. the attorney-in-fact or anyone related to the
attorney-in-fact by blood or marriage; and
3. The execution of the power of attorney shall be in
substantially the followi ng form:
Signed: ________________________
(Principal's signature)
City, County, and State of Residence
____________________________________
____________________________________
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The principal is personally known to me and I be lieve the
principal to be of sound mind. I am eighteen (18) years of age
or older. I am not related to the principal by blood or
marriage, or related to the attorney -in-fact by blood or
marriage. The principal has declared to me that this instrument
is his or her power of attorney granting to the named attorney-
in-fact the power and authority sp ecified herein, and that he or
she has willingly made and executed it as his or her free and
voluntary act for the purpo ses herein expressed.
Witness: ___________ _____________
Witness: ________________________
STATE OF OKLAHOMA )
) SS.
COUNTY OF ___________)
Before me, the undersigned authority, on this
____ day of _______________, 20__, personally appeared
____________________ (principal),
_____________________ ____ (witness), and
_____________ (witness),
whose names are subscribed to the foregoing instr ument in their
respective capacities, and all of said persons being by me duly
sworn, the principal declared to me and t o the said witnesses in
my presence that the instrument is his or her p ower of attorney,
and that the principal has willingly and volunt arily made and
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executed it as the free act and deed of the principal for the
purposes therein expressed, and the witness es declared to me
that they were each eigh teen (18) years of age or older, and
that neither of them is re lated to the principal by blood or
marriage, or related to the attorney -in-fact by blood or
marriage.
____________________________
Notary Public
My Commission Expires:
_________________________ __
B. Execution of a durable power of attorney in substantiall y
the form prescribed by this s ection shall create a presumption that
the principal understands the nature and purpose of the power of
attorney and has executed the same while being of sound mi nd, and of
his or her free will. A person dealing with the attorney-in-fact
shall not be required to inquire into the validity or adequacy of
the execution of the power of attorney, nor shall any such person be
required to inquire into the validity or pro priety of any act of an
attorney-in-fact apparently authorized by a pow er of attorney
executed pursuant to this section.
C. Notwithstanding the provisions of Section 26 of Title 16 of
the Oklahoma Statutes, county clerks shall record any durable power
of attorney executed in substanti ally the form prescribed in
subsection A of this section.
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D. A power of attorney executed in ano ther state shall be
considered valid for purposes of the Uniform Durable Power of
Attorney Act if the power of attorney and the execution of the power
of attorney substantially comply with the requirements of the
Medical Uniform Durable Power of Attorney Act.
E. Nothing in this section shall be cons trued to affect powers
of attorney established pursuant to common l aw.
SECTION 5. NEW LAW A new se ction of law to be codified
in the Oklahoma Statutes as Section 3054 of Title 58, unless there
is created a duplication in numbering, reads as follows:
A. "Extended absence" as used in the Medical Uniform Durable
Power of Attorney Act means that a principal has b een missing or
loses all contact with the designated attorney -in-fact, family
members, and friends for a period of more than forty -five (45) days.
"Contact" includes, but is not limited to , face-to-face contact, a
communication that can reasonably be veri fied as having been
produced or made by the principal such as a letter, phone call, text
message, electronic mail, or other electronic c ommunication. If the
principal is a member of the Armed Forces o f the United States, an
extended absence, as defined in this section, shall not exist when
the principal is deployed fo r military service or training or is
classified as missing in action or a prisoner of war. A durable
power of attorney activated because of an extended absence shall be
considered in effect u ntil the principal makes contact with the
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attorney-in-fact, family members, or friends or until t he principal
is found.
B. Once a principal's extended absence exceeds the period of
time prescribed by Section 941 of Title 58 of the Oklahoma Statutes,
the attorney-in-fact shall start proceedings under Section 941 of
Title 58 of the Oklahoma Statutes to have the principal declared
legally dead.
SECTION 6. NEW LAW A new section of l aw to be codified
in the Oklahoma Statutes as Section 3055 of Title 58, unless there
is created a duplication in number ing, reads as follows:
All acts by an attorney-in-fact pursuant to a durable power of
attorney during any period of disability, incapacit y, or extended
absence of the principal have the same e ffect and inure to the
benefit of and bind the principal and his or her successors in
interest as if the principal were competent and not disabled,
incapacitated, or on an extended absence.
SECTION 7. NEW LAW A new section of law to be cod ified
in the Oklahoma Statutes as Section 3056 of Title 58, unless there
is created a duplication in numbering, reads as follows:
A. If, following execution of a durable power of attorney, a
court of the principal 's domicile appoints a conservator, guardi an
of the estate, or other fiduciary charged with the management of all
of the principal's property or all of the principal's property
except specified exclusions, the attorney-in-fact is accountable to
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the fiduciary as well as to the principal. The fiduciary has the
same power to revoke or amend the power of attorney that the
principal would have ha d if the principal were not disabl ed or
incapacitated.
B. A principal may nominate, by a durable power of attorney,
the conservator, guardian of his or her es tate, or guardian of his
or her person for consideration by the court if protective
proceedings for the principal's person or estate are thereafter
commenced. The court shall make its appointme nt in accordance with
the principal's most recent nomination i n a durable power of
attorney except for good cause or disqualif ication.
SECTION 8. NEW LAW A new section o f law to be codified
in the Oklahoma Statutes as Section 3057 of Title 58, unless there
is created a duplication in numbering , reads as follows:
A. Death of the principal revokes and termi nates the power of
attorney; provided, however, the death of a princ ipal who has
executed a written power of attorney, durable or otherwise, does not
revoke or terminate the agency as to the at torney-in-fact or other
person, who, without actual knowledge of the death of the principal,
acts in good faith under the power. Any action so taken, unle ss
otherwise invalid or unenforceable, binds successors in interest of
the principal.
B. The disability or incapacity of a principal who has
previously executed a w ritten power of attorney that is not a
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durable power does not revok e or terminate the agency as to the
attorney-in-fact or other person, who, without actual knowledge of
the disability or inca pacity of the principal, acts in good faith
under the power. Any action so taken, unless otherwi se invalid or
unenforceable, binds the principal and his suc cessors in interest.
C. If a durable power of attorney is recorded with the clerk in
any county of this state, in the event of revocation of such durable
power of attorney, notice of the revocati on shall be filed in each
county or counties where the durabl e power of attorney was recorded.
Until such notice is recorded, any person or entity may rely on the
recorded authority of the attorney -in-fact with respect to matters
covered by the records of the county clerk, and the acts of the
attorney-in-fact shall be binding on the principal or the
principal's successors in interest.
SECTION 9. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3058 of Title 58, unless there
is created a duplication in numbering, reads as follows:
As to acts undertaken in good-faith reliance thereon, an
affidavit executed by the attorney-in-fact under a power of
attorney, durable or other wise, stating that he or she did not have
at the time of exercise of the p ower actual knowledge of the
termination of the power by revocation or of the principal 's death,
disability, or incapa city is conclusive proof of the nonrevocation
or nontermination of the power at that time. If the exercise of the
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power of attorney requ ires execution and deli very of any instrument
that is recordable, the affidavit when authenticated for record is
likewise recordable. This section does not affect any provision in
a power of attorney for its termina tion by expiration of time or
occurrence of an event other than express revocation or a change i n
the principal's capacity.
SECTION 10. NEW LAW A new section of law to be codified
in the Oklahoma Stat utes as Section 3059 of Title 58, unless there
is created a duplication i n numbering, reads as f ollows:
The Medical Uniform Durable Power of Attorney Act shall be
applied and construed to effectuate i ts general purpose to make
uniform the law with respect to the s ubject of this act among states
enacting it.
SECTION 11. AMENDATORY 58 O.S. 2021, Section 3045, is
amended to read as follows:
Except as otherwise provided in this act , on the effective date
of this act:
1. This act applies to a power of attorney created before, on
or after the effective date of this a ct;
2. This act applies to a judicial proceeding concer ning a power
of attorney commenced on or after the effective da te of this act;
3. This act applies to a judicial proceeding co ncerning a power
of attorney commenced before the effective date of this act unless
the court finds that application of a provisi on of this act would
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substantially interfere with the effective conduct of the judicial
proceeding or prejudice the rights of a party, in which case that
provision does not apply and the superseded la w applies; and
4. A power of attorney created before th e effective date of
this act is not affected by this act.
SECTION 12. This act shall become effective July 1, 2022.
SECTION 13. It being immediately necessary for the preservation
of the public peace, health or safety, an emergency is hereby
declared to exist, by reason whereof this act shall take effect and
be in full force from and after its passa ge and approval.
58-2-9025 JL 01/17/22