An Oklahoma durable power of attorney form allows an individual (“principal”) to grant another person (“attorney-in-fact”) the authority to manage their finances, either with limitations or unrestricted. Individuals approaching old age often use this or prefer to delegate business matters.
“Durable” means that the form remains valid even if the principal becomes mentally incapacitated, allowing the attorney-in-fact to manage their financial affairs on their behalf.
Laws
In Oklahoma, power of attorney forms can be made durable by including the following or similar language:
“This power of attorney will continue to be effective if I become disabled, incapacitated, or incompetent.”
“This power of attorney shall not be affected by subsequent disability, incapacity, extended absence of the principal, or lapse of time.”
“This power of attorney shall become effective upon the disability, incapacity, or extended absence of the principal.”
- Relevant Laws: §§ 58-1071 — 58-1077 (Uniform Durable Power of Attorney Act).
- Presumed Durable: No. § 1072.
- Signing: The signature of the principal and two witnesses is required. § 1072.2.
- Notarization: Signatures of the principal and two witnesses must be acknowledged by a notary public. § 1072.2(3).
- Statutory Form: Yes. § 15-1003.
Definitions
Durable – “Durable,” with respect to a power of attorney, means not terminated by the principal’s incapacity. 58 Okl. St.Ann. § 3002(2).
Power of Attorney – “Power of attorney” means a writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term power of attorney is used. 58 Okl. St.Ann. § 3002(7).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
Under Oklahoma law, specifically Title 15 § 1015, § 58-1210, § 58-1211, § 58-1212, and Title 58, § 3040, outlines the guidelines for agents making gifts and transfers on behalf of principals:
Types of Gifts
- Gift “for the benefit of” an individual: This type of gift includes any contributions an agent makes to a trust on behalf of the principal. It also covers contributions to an account under the Oklahoma Transfers to Minors Act, contributions to a prepaid tuition plan, and contributions to a 529 education savings plan (§ 3040).
- Outright gifts to individuals: Agents may make outright gifts of the principal’s property to individuals, subject to the annual dollar limits of the federal gift tax exclusion.
- Consent to split gifts: An agent may consent to the splitting of gifts made by the principal’s spouse, effectively allowing each gift to be considered as half from each spouse. This strategy effectively doubles the allowable exclusion limit per donee, subject to the combined annual gift tax exclusions of both spouses (26 USC, Section 2513).
Considerations
- The principal’s historical approach to making and jointly making gifts.
- The principal’s eligibility for assistance, programs, or benefits under relevant laws or regulations.
- The aim to minimize various taxes, including gift, generation-skipping transfer, inheritance, estate, and income taxes.
- The value and nature of the principal’s property.
- The principal’s future commitments and maintenance requirements.
Agent’s Authority Limitations
- The agent has the authority to make decisions concerning the principal’s property, including money, regardless of the principal’s ability to act.
- The agent is not authorized to make health care decisions for the principal.
- Typically, the agent’s authority continues until the principal’s death, the power of attorney is revoked, the agent resigns, or the agent can no longer act for the principal.
- The agent is entitled to reasonable compensation unless stated otherwise in the Special Instructions section of the document.
Unless specified differently in the Durable Power of Attorney (DPOA) document, an agent who is not the spouse, ancestor, or descendant of the principal is restricted from using their authority for their own benefit or the benefit of individuals they are legally obligated to support.
Revocation and Termination
Under Oklahoma Statute, Title 58, Section 1075, a durable power of attorney is terminated under the following circumstances:
- A court appoints a guardian or conservator to manage the principal’s property.
- The principal revokes the agent’s authority.
- The agent dies, resigns, or can no longer act in the principal’s best interest.
- The DPOA is revoked by the principal.
- The principal dies.
Similarly, an agent’s authority is terminated if:
- The principal revokes the authority.
- The agent dies, becomes incapacitated, or resigns.
- The DPOA terminates.
- The agent and principal’s marriage is dissolved through divorce or annulment.
If a durable power of attorney is officially filed with the county clerk in any part of this state, and it is later revoked, a notice of this revocation must also be filed in every county where the original power of attorney was recorded.
Safekeeping and Registration
While Oklahoma does not maintain a statewide registry for Durable Powers of Attorney, if the DPOA includes authority related to real property, the principal may need to register the document with the county clerk in the county where the property is located.
Principals and agents are advised to keep the DPOA document in a secure location, such as a safe deposit box or a home safe, for easy access and reference as needed.
Additional Resources
- OK Law: Provides information and assistance on Durable Powers of Attorney.
- Oklahoma Bar Association: Offers resources and referrals for legal assistance, including services related to estate planning and powers of attorney.
