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Oklahoma House Bill HB3343

Oklahoma 2022 Regular Session

Oklahoma House Bill HB3343 Compare Versions

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29-HOUSE OF REPRESENTATIVES - FLOOR VERSION
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1+Req. No. 9025 Page 1
312 STATE OF OKLAHOMA
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334 2nd Session of the 58th Legislat ure (2022)
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356 HOUSE BILL 3343 By: Worthen
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4314 AS INTRODUCED
4415
4516 An Act relating to power of attorney; enacting the
4617 Medical Uniform Durable Power of Attorney Act of
4718 2022; providing applicability to a ll powers of
4819 attorney concerning health and medical care decisions
4920 executed in conformity with the requirements of this
5021 act; providing that all powers of attorney concerning
5122 health and medical care decisions validl y executed
5223 prior to the effective date are valid and enforceable
5324 according to the statutory provis ions in effect at
5425 the time of execution; providing that all powers of
5526 attorney for health and medical care decisions in
5627 accordance with a certain statute afte r and before a
5728 specified date are valid an d enforceable; defining
5829 term; identifying permissible co ntents of durable
5930 power of attorney; identifying scope of the durable
6031 power of attorney; providing procedures by which a
6132 durable power of attorney may be executed; providing
6233 form; establishing presump tion upon execution;
6334 avoiding recordation; specifying me thod of execution
6435 after a certain date; validating certain powers of
6536 attorney; providing rule of construction; providing
6637 length of time for extended absence; requiring
6738 commencement of certain proceedi ngs if extended
6839 absence exceeds certain time period; making durable
6940 power of attorney not affected by disability,
7041 incapacity, or extended absence of the principal;
7142 stating relation of attorney -in-fact to court-
7243 appointed fiduciary; providing that a power of
7344 attorney not be revoked until notice; stating effect
7445 of affidavit of attorney-in-fact; providing for
7546 uniformity of application and construction; amending
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47+58 O.S. 2021, Section 3045, which relates to the
48+Uniform Power of Attorney Act of 2021; clarifying
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103-58 O.S. 2021, Section 3045, which relates to the
104-Uniform Power of Attorney Act of 2021; clarifying
10574 effective date; providing for codification; providing
10675 an effective date; and declaring an emergency.
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11180 BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
11281 SECTION 1. NEW LAW A new section of law to be codified
11382 in the Oklahoma Stat utes as Section 3050 of Title 58, unless there
11483 is created a duplication in numbering, reads as follows:
11584 A. Sections 1 through 10 of this act shall be known and may be
11685 cited as the "Medical Uniform Durable Power of Attorney Act of
11786 2022".
11887 B. The provisions of this act shall be applicable to all powers
11988 of attorney for health and medical care decisions executed in
12089 conformity with the requirements this act.
12190 C. All powers of attorney for health and medical care decisions
12291 validly executed prior to the effective date of this act shall be
12392 valid and enforceable according to the statutory provisions in
12493 effect at the time the powers of attorney for health and medical
12594 care decisions were executed.
12695 D. All powers of attorney f or health and medical care decisions
12796 executed on or after November 1, 2021, but no later than the
12897 effective date of this act, that were executed in accordance with
12998 the requirements of Section 1071 et seq. of Title 58 of the Oklahoma
13099 Statues are valid and e nforceable according to those statutes.
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158125 SECTION 2. NEW LAW A new section of law to be codified
159126 in the Oklahoma Statutes as Section 3051 of Title 58, unless there
160127 is created a duplication in numbering, reads as follows:
161128 A durable power of attorney is a power of attorney by wh ich a
162129 principal designates another his attorney-in-fact in writing and the
163130 writing contains the words "This power of attorney sh all not be
164131 affected by subsequent disability, incapacity, or extended absence
165132 of the principal, or lapse of time ", or "This power of attorney
166133 shall become effective upon the disability, incapa city, or extended
167134 absence of the principal ", or similar words sh owing the intent of
168135 the principal that the authority conferred shall be exercisable
169136 notwithstanding the principal 's subsequent disability, incapacity,
170137 or extended absence, and, unless it state s a time of termination,
171138 notwithstanding the lapse of time since the execution of the
172139 instrument.
173140 SECTION 3. NEW LAW A new section of law to be codified
174141 in the Oklahoma Statutes as Section 3052 of Title 58, unless there
175142 is created a duplication in numbering, reads as follows:
176143 A. The durable power of attorney may show or state:
177144 1. The fact of execution under the provisions of the Medical
178145 Uniform Durable Power of Attorne y Act;
179146 2. The time and conditions un der which the power is to become
180147 effective;
181148 3. The extent and scope of the powers conferred; and
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209174 4. Who is to exercise the power, including any successor
210175 attorney-in-fact, if a prior appointed attorney -in-fact dies, ceases
211176 to act, refuses or is unable to se rve, or resigns.
212177 B. The power may grant complete or limited authority with
213178 respect to the princ ipal's:
214179 1. Person, including, but not limited to, health and medical
215180 care decisions and a do -not-resuscitate consent on the principal's
216181 behalf, but excluding:
217182 a. the execution, on behalf of t he principal, of a
218183 Directive to Physicians, an Advance Directive for
219184 Health Care, Living Will, or other document, except an
220185 Oklahoma standardized format physician orders for
221186 life-sustaining treatment form in accordance with t he
222187 provisions of this act, purp orting to authorize life -
223188 sustaining treatment decisions, and
224189 b. the making of life-sustaining treatment decisions
225190 unless the power complies with the requirements for a
226191 health care proxy under the Oklahoma Advance Directive
227192 Act or the Oklahoma Do-Not-Resuscitate Act; and
228193 2. Property, including homestead property, wheth er real,
229194 personal, intangible , or mixed.
230195 SECTION 4. NEW LAW A new section of law to be codified
231196 in the Oklahoma Statutes as Section 3053 of Title 58, unless there
232197 is created a duplication in numbering, reads as follows:
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260223 A. A durable power of attorney may be executed in accordance
261224 with the following provisions; provided, however, failure to execute
262225 a power of attorney as prescribed in this s ection shall not be
263226 construed to diminish the effect or validity of an otherwise
264227 properly executed durable power of attorney:
265228 1. The principal shall sign the power of attorney at its end,
266229 or, if the principal is u nable, some other person shall subscribe
267230 his or her name thereto in his or her presence and by his or her
268231 direction. The principal, or such other person, shall sign in the
269232 presence of two witnesses, each of whom shall sign his or her name
270233 in the presence of the principal and each other;
271234 2. The witnesses shall not be:
272235 a. under eighteen (18) years of age,
273236 b. related to the principal by blo od or marriage, or
274237 c. the attorney-in-fact or anyone related to the
275238 attorney-in-fact by blood or marriage; and
276239 3. The execution of the power of attorney shall be in
277240 substantially the followi ng form:
278241 Signed: ________________________
279242 (Principal's signature)
280243 City, County, and State of Residence
281244 ____________________________________
282245 ____________________________________
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310271 The principal is personally known to me and I be lieve the
311272 principal to be of sound mind. I am eighteen (18) years of age
312273 or older. I am not related to the principal by blood or
313274 marriage, or related to the attorney -in-fact by blood or
314275 marriage. The principal has declared to me that this instrument
315276 is his or her power of attorney granting to the named attorney-
316277 in-fact the power and authority sp ecified herein, and that he or
317278 she has willingly made and executed it as his or her free and
318279 voluntary act for the purpo ses herein expressed.
319280 Witness: ___________ _____________
320281 Witness: ________________________
321282 STATE OF OKLAHOMA )
322283 ) SS.
323284 COUNTY OF ___________)
324285 Before me, the undersigned authority, on this
325286 ____ day of _______________, 20__, personally appeared
326287 ____________________ (principal),
327288 _____________________ ____ (witness), and
328289 _____________ (witness),
329290 whose names are subscribed to the foregoing instr ument in their
330291 respective capacities, and all of said persons being by me duly
331292 sworn, the principal declared to me and t o the said witnesses in
332293 my presence that the instrument is his or her p ower of attorney,
333294 and that the principal has willingly and volunt arily made and
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361320 executed it as the free act and deed of the principal for the
362321 purposes therein expressed, and the witness es declared to me
363322 that they were each eigh teen (18) years of age or older, and
364323 that neither of them is re lated to the principal by blood or
365324 marriage, or related to the attorney -in-fact by blood or
366325 marriage.
367326 ____________________________
368327 Notary Public
369328 My Commission Expires:
370329 _________________________ __
371330 B. Execution of a durable power of attorney in substantiall y
372331 the form prescribed by this s ection shall create a presumption that
373332 the principal understands the nature and purpose of the power of
374333 attorney and has executed the same while being of sound mi nd, and of
375334 his or her free will. A person dealing with the attorney-in-fact
376335 shall not be required to inquire into the validity or adequacy of
377336 the execution of the power of attorney, nor shall any such person be
378337 required to inquire into the validity or pro priety of any act of an
379338 attorney-in-fact apparently authorized by a pow er of attorney
380339 executed pursuant to this section.
381340 C. Notwithstanding the provisions of Section 26 of Title 16 of
382341 the Oklahoma Statutes, county clerks shall record any durable power
383342 of attorney executed in substanti ally the form prescribed in
384343 subsection A of this section.
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412369 D. A power of attorney executed in ano ther state shall be
413370 considered valid for purposes of the Uniform Durable Power of
414371 Attorney Act if the power of attorney and the execution of the power
415372 of attorney substantially comply with the requirements of the
416373 Medical Uniform Durable Power of Attorney Act.
417374 E. Nothing in this section shall be cons trued to affect powers
418375 of attorney established pursuant to common l aw.
419376 SECTION 5. NEW LAW A new se ction of law to be codified
420377 in the Oklahoma Statutes as Section 3054 of Title 58, unless there
421378 is created a duplication in numbering, reads as follows:
422379 A. "Extended absence" as used in the Medical Uniform Durable
423380 Power of Attorney Act means that a principal has b een missing or
424381 loses all contact with the designated attorney -in-fact, family
425382 members, and friends for a period of more than forty -five (45) days.
426383 "Contact" includes, but is not limited to , face-to-face contact, a
427384 communication that can reasonably be veri fied as having been
428385 produced or made by the principal such as a letter, phone call, text
429386 message, electronic mail, or other electronic c ommunication. If the
430387 principal is a member of the Armed Forces o f the United States, an
431388 extended absence, as defined in this section, shall not exist when
432389 the principal is deployed fo r military service or training or is
433390 classified as missing in action or a prisoner of war. A durable
434391 power of attorney activated because of an extended absence shall be
435392 considered in effect u ntil the principal makes contact with the
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463418 attorney-in-fact, family members, or friends or until t he principal
464419 is found.
465420 B. Once a principal's extended absence exceeds the period of
466421 time prescribed by Section 941 of Title 58 of the Oklahoma Statutes,
467422 the attorney-in-fact shall start proceedings under Section 941 of
468423 Title 58 of the Oklahoma Statutes to have the principal declared
469424 legally dead.
470425 SECTION 6. NEW LAW A new section of l aw to be codified
471426 in the Oklahoma Statutes as Section 3055 of Title 58, unless there
472427 is created a duplication in number ing, reads as follows:
473428 All acts by an attorney-in-fact pursuant to a durable power of
474429 attorney during any period of disability, incapacit y, or extended
475430 absence of the principal have the same e ffect and inure to the
476431 benefit of and bind the principal and his or her successors in
477432 interest as if the principal were competent and not disabled,
478433 incapacitated, or on an extended absence.
479434 SECTION 7. NEW LAW A new section of law to be cod ified
480435 in the Oklahoma Statutes as Section 3056 of Title 58, unless there
481436 is created a duplication in numbering, reads as follows:
482437 A. If, following execution of a durable power of attorney, a
483438 court of the principal 's domicile appoints a conservator, guardi an
484439 of the estate, or other fiduciary charged with the management of all
485440 of the principal's property or all of the principal's property
486441 except specified exclusions, the attorney-in-fact is accountable to
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514467 the fiduciary as well as to the principal. The fiduciary has the
515468 same power to revoke or amend the power of attorney that the
516469 principal would have ha d if the principal were not disabl ed or
517470 incapacitated.
518471 B. A principal may nominate, by a durable power of attorney,
519472 the conservator, guardian of his or her es tate, or guardian of his
520473 or her person for consideration by the court if protective
521474 proceedings for the principal's person or estate are thereafter
522475 commenced. The court shall make its appointme nt in accordance with
523476 the principal's most recent nomination i n a durable power of
524477 attorney except for good cause or disqualif ication.
525478 SECTION 8. NEW LAW A new section o f law to be codified
526479 in the Oklahoma Statutes as Section 3057 of Title 58, unless there
527480 is created a duplication in numbering , reads as follows:
528481 A. Death of the principal revokes and termi nates the power of
529482 attorney; provided, however, the death of a princ ipal who has
530483 executed a written power of attorney, durable or otherwise, does not
531484 revoke or terminate the agency as to the at torney-in-fact or other
532485 person, who, without actual knowledge of the death of the principal,
533486 acts in good faith under the power. Any action so taken, unle ss
534487 otherwise invalid or unenforceable, binds successors in interest of
535488 the principal.
536489 B. The disability or incapacity of a principal who has
537490 previously executed a w ritten power of attorney that is not a
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565516 durable power does not revok e or terminate the agency as to the
566517 attorney-in-fact or other person, who, without actual knowledge of
567518 the disability or inca pacity of the principal, acts in good faith
568519 under the power. Any action so taken, unless otherwi se invalid or
569520 unenforceable, binds the principal and his suc cessors in interest.
570521 C. If a durable power of attorney is recorded with the clerk in
571522 any county of this state, in the event of revocation of such durable
572523 power of attorney, notice of the revocati on shall be filed in each
573524 county or counties where the durabl e power of attorney was recorded.
574525 Until such notice is recorded, any person or entity may rely on the
575526 recorded authority of the attorney -in-fact with respect to matters
576527 covered by the records of the county clerk, and the acts of the
577528 attorney-in-fact shall be binding on the principal or the
578529 principal's successors in interest.
579530 SECTION 9. NEW LAW A new section of law to be codified
580531 in the Oklahoma Statutes as Section 3058 of Title 58, unless there
581532 is created a duplication in numbering, reads as follows:
582533 As to acts undertaken in good-faith reliance thereon, an
583534 affidavit executed by the attorney-in-fact under a power of
584535 attorney, durable or other wise, stating that he or she did not have
585536 at the time of exercise of the p ower actual knowledge of the
586537 termination of the power by revocation or of the principal 's death,
587538 disability, or incapa city is conclusive proof of the nonrevocation
588539 or nontermination of the power at that time. If the exercise of the
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616565 power of attorney requ ires execution and deli very of any instrument
617566 that is recordable, the affidavit when authenticated for record is
618567 likewise recordable. This section does not affect any provision in
619568 a power of attorney for its termina tion by expiration of time or
620569 occurrence of an event other than express revocation or a change i n
621570 the principal's capacity.
622571 SECTION 10. NEW LAW A new section of law to be codified
623572 in the Oklahoma Stat utes as Section 3059 of Title 58, unless there
624573 is created a duplication i n numbering, reads as f ollows:
625574 The Medical Uniform Durable Power of Attorney Act shall be
626575 applied and construed to effectuate i ts general purpose to make
627576 uniform the law with respect to the s ubject of this act among states
628577 enacting it.
629578 SECTION 11. AMENDATORY 58 O.S. 2021, Section 3045, is
630579 amended to read as follows:
631580 Except as otherwise provided in this act , on the effective date
632581 of this act:
633582 1. This act applies to a power of attorney created before, on
634583 or after the effective date of this a ct;
635584 2. This act applies to a judicial proceeding concer ning a power
636585 of attorney commenced on or after the effective da te of this act;
637586 3. This act applies to a judicial proceeding co ncerning a power
638587 of attorney commenced before the effective date of this act unless
639588 the court finds that application of a provisi on of this act would
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667614 substantially interfere with the effective conduct of the judicial
668615 proceeding or prejudice the rights of a party, in which case that
669616 provision does not apply and the superseded la w applies; and
670617 4. A power of attorney created before th e effective date of
671618 this act is not affected by this act.
672619 SECTION 12. This act shall become effective July 1, 2022.
673620 SECTION 13. It being immediately necessary for the preservation
674621 of the public peace, health or safety, an emergency is hereby
675622 declared to exist, by reason whereof this act shall take effect and
676623 be in full force from and after its passa ge and approval.
677624
678-COMMITTEE REPORT BY: COMMITT EE ON JUDICIARY - CRIMINAL, dated
679-03/03/2022 - DO PASS.
625+58-2-9025 JL 01/17/22