Powers of Attorney

Most people think of estate planning as planning for death. But statistically, you are more likely to face a period of incapacity during your lifetime than you are to die unexpectedly. Strokes, accidents, cognitive decline, surgical complications — any of these can leave you temporarily or permanently unable to manage your own affairs.

A power of attorney is your plan for that possibility. It names someone you trust — your agent — and gives them the legal authority to act on your behalf when you cannot act for yourself. Without one, your family has no authority to access your bank accounts, pay your bills, manage your investments, or handle your legal matters. They would need to go to court — a costly, public, and time-consuming guardianship proceeding — to obtain that authority.

A well-drafted power of attorney prevents all of that. It is one of the most important documents in any estate plan, and yet it is one of the most commonly overlooked.

Financial Power of Attorney

A financial power of attorney grants your agent authority over your financial and legal affairs. The scope of that authority is customizable — you can grant broad powers or limit them to specific areas.

Common powers include:

• Banking. Accessing accounts, making deposits and withdrawals, paying bills, managing online banking
• Real estate. Buying, selling, managing, or refinancing property on your behalf
• Investments. Managing brokerage accounts, making investment decisions, rolling over retirement accounts
• Tax matters. Filing returns, responding to IRS or state tax correspondence, managing tax obligations
• Business operations. If you own a business, authorizing your agent to manage business affairs
• Government benefits. Applying for Social Security, Medicare, Medicaid, veterans’ benefits, or other programs
• Legal matters. Hiring attorneys, settling claims, managing litigation

The key design decision is how broad or narrow to make the grant of authority. Too narrow, and your agent may lack the power they need when it matters most. Too broad, and you increase the risk of misuse. I draft each power of attorney to match the client’s specific circumstances, with appropriate limitations and safeguards.

Durable vs. Springing Powers

Oklahoma law recognizes two timing approaches for powers of attorney, and the choice between them has significant practical implications.

Durable Power of Attorney

A durable power of attorney takes effect immediately when signed and remains effective even if you become incapacitated. “Durable” is the key word — under Oklahoma law, a power of attorney must include specific language stating that it is not affected by subsequent incapacity, or it will be automatically revoked if you lose the capacity to make decisions.

Advantages: Your agent can act immediately when needed, without delay, without the cost of a physician’s certification, and without potential disputes about whether you have actually become incapacitated.

Consideration: Your agent has authority from the moment you sign, even while you are fully capable. This requires a high degree of trust. However, remember that your agent has a fiduciary duty to act only in your best interest, and you can revoke the power at any time while you retain capacity.

Springing Power of Attorney

A springing power of attorney does not take effect until a specified triggering event occurs — most commonly, a determination by one or two physicians that you are incapacitated.

Advantages: Your agent has no authority until the triggering event occurs, which some people find more comfortable.

Consideration: The triggering mechanism can create delays. Your agent must first obtain the required physician’s certification before they can act. Financial institutions may question or reject the power while the triggering condition is being verified. In an emergency, these delays can be harmful.

For most clients, I recommend a durable power of attorney with a trusted agent. The practical advantages of immediate availability outweigh the theoretical comfort of a springing mechanism — particularly when the agent is someone you trust completely.

Choosing Your Agent

Choosing the right agent is the most critical decision in the entire process. Your agent will have significant authority over your financial life, and the wrong choice can have serious consequences.

Qualities to look for:

• Trustworthiness. This is non-negotiable. Your agent will have access to your financial accounts and the authority to make binding decisions. You need someone whose integrity you trust completely.
• Financial competence. Your agent does not need to be a financial expert, but they should be reasonably capable of managing money, paying bills, and making sound financial decisions.
• Availability. Your agent needs to be available when needed — geographically accessible and willing to take on the responsibility.
• Willingness to serve. Being named as an agent is a responsibility, not an honor. Make sure the person you choose understands what is involved and is genuinely willing to serve.

People to consider: Spouses, adult children, siblings, or trusted friends are common choices. You should also name at least one successor agent in case your primary agent is unable or unwilling to serve when the time comes.

People to avoid: Anyone with a history of financial irresponsibility, substance abuse issues, or conflicts of interest. Being a loving family member does not automatically make someone a good choice as your financial agent.

I help every client think through this decision carefully. The document itself is only as effective as the person you choose to wield it.

Risks of Not Having a Power of Attorney

The consequences of not having a power of attorney when you need one are severe — and they fall on your family.

Without a power of attorney, no one — not your spouse, not your children, not your closest family member — has the legal authority to:

• Access your bank accounts to pay your mortgage, utilities, or medical bills
• Manage your investments or retirement accounts
• File your tax returns
• Sell or refinance your property
• Make decisions about your business
• Apply for government benefits on your behalf

The only alternative is a court-supervised guardianship or conservatorship proceeding. This requires hiring an attorney, filing a petition, attending hearings, and waiting for a judge to appoint someone to manage your affairs. The process typically costs thousands of dollars, takes weeks or months, and becomes a matter of public record. And the court may not appoint the person you would have chosen.

A properly drafted power of attorney avoids all of this. It costs a fraction of what a guardianship proceeding costs. It is private. It takes effect immediately. And most importantly, it ensures that the person you trust — not a court-appointed stranger — is making decisions on your behalf.

Oklahoma Power of Attorney Law

Oklahoma has specific rules governing powers of attorney that affect how they must be drafted and executed.

Durability language. Under Oklahoma’s Uniform Durable Power of Attorney Act, a power of attorney must contain specific language to be durable. Without this language, the power automatically terminates if the principal becomes incapacitated.

Execution requirements. A power of attorney must be signed by the principal (or someone at the principal’s direction and in their presence) and should be notarized. Financial institutions increasingly require notarized powers of attorney, and some maintain their own power of attorney forms that they prefer.

Third-party acceptance. Oklahoma law requires third parties (banks, title companies, etc.) to accept properly executed powers of attorney. However, practical resistance from financial institutions remains a common problem. I draft powers of attorney with language designed to maximize acceptance and minimize institutional pushback.

Coordination with other documents. Your power of attorney should be coordinated with your other estate planning documents — your will, trust, and advance directives. Inconsistencies between documents can create confusion and disputes. I ensure all your documents work together as a coherent plan.