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					WHAT EVERY OKLAHOMA ELDER LAWYER SHOULD KNOW ABOUT
            SPRINGING POWERS OF ATTORNEY
                                      By Kent W. Gardner
                                       December 1, 2003

       As people grow older, they are faced with numerous decisions regarding the possibilities

of what is to come, not only for themselves, but also for their property. Often, individuals plan

for what is to happen after death through the use of wills and trusts; however, they tend to

overlook the more complicated decisions that arise regarding the management and care of their

person and property before death.

       Several possibilities exist for the management and care of an individual’s personal needs

and property. One such alternative is through the execution of a power of attorney. A power of

attorney allows a principal to empower an agent to act on her behalf.1 Traditional powers of

attorney did come with limits. When the principal became incompetent or incapacitated the

power of attorney was automatically revoked.2 Therefore, a power of attorney could not be used

by principals as a planning tool for those times to come when they would be unable to manage

their own affairs. The automatic revocation of a power of attorney has been changed by the

Oklahoma Legislature through its enactment of the Uniform Durable Power of Attorney Act3 and

the Uniform Statutory Form Power of Attorney Act.4 Both of these acts allow for a power of

attorney to continue even though the principal has become incapacitated or incompetent.

       Even though powers of attorney can now be used as a management tool, many people

have great concern about giving another individual the right to make decisions on their behalf

while they are still capable of making the decisions for themselves.5 One way to ease fears



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regarding a power of attorney is through the drafting of a “springing” power of attorney.

Springing powers only become effective after a described event has occurred or a designated date

has been reached.6 Thus, a principal can retain complete control over her affairs until a

designated point and time in the future.7 The use of a springing power ensures that a principal

will have a designated individual in place to make decisions when needed. At the same time, a

principal may maintain control over her affairs until such time as the power of attorney becomes

effective.



             CREATION OF A SPRINGING STATUTORY FORM POWER OF ATTORNEY

        As previously noted, Oklahoma has both a Uniform Durable Power of Attorney Act and a

Uniform Statutory Form Power of Attorney Act. Both of these acts allow for the creation of

powers of attorney, but the scope of the powers of attorney created under each act varies. The

purpose of the Statutory Form Power of Attorney Act is to allow for the easy creation of powers

of attorney if executed in a form substantially similar to the statutory form.8 A substantially

similar power of attorney also reassures third parties they are justified in relying upon the power

of attorney.9 Though the powers conferred to an agent are not described on the face of a statutory

form power of attorney, the powers granted are set forth in the statute.10

        All that is necessary for the creation of a statutory form power of attorney is the execution

of a power of attorney that is substantially similar to the power of attorney contained in the

statutes.11 Though no express provision is found in the statutes that allows for a springing

statutory form power of attorney, the statutes do contain language that appear to allow springing


                                                  2
powers. Included in the statutory power of attorney, directly below the space for additional

comments, is the wording that “UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER

OF ATTORNEY IS EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS

REVOKED.”12 Should a principal so desire, it would seem that if comments were added that

restricted the effective date of the power of attorney to some specified date in the future or to the

occurrence of a designated event, a springing statutory form power of attorney could be created.

       A statutory form power of attorney is usually “activated by simply being signed before

and acknowledged by a notary,”13 and the use of springing powers is usually thought to be

limited to powers of attorney created under the Uniform Durable Power of Attorney Act.14

Though not often used in statutory form powers of attorney, there is no doubt that as long the

conditions springing a power into effect are drafted into a statutory form power of attorney that

substantially complies with the statute, a springing statutory form power of attorney can be

created.



                  CREATION OF A SPRINGING DURABLE POWER OF ATTORNEY

       Though no provision in the statutes expressly provides for the creation of a springing

power in a statutory form power of attorney, Oklahoma statutes do expressly allow such

springing powers in durable powers of attorney.15 Durable powers of attorney are allowed to set

forth “the time and conditions under which the power is to become effective.”16

       In order to make a power of attorney a durable power, the principal must show an intent

that the authority conferred in the power of attorney survive the principal’s subsequent disability


                                                  3
or incapacity.17 One way to manifest such intent is by stating that the power of attorney is to

become effective “upon the disability or incapacity of the principal.”18 By so stating, the power

of attorney “springs” into effect after the principal has become disabled or incapacitated. Once

the event triggering the effectiveness of the power of attorney has occurred, the agent becomes

vested with those powers granted in the power of attorney. Unlike the Uniform Statutory Form

Power of Attorney Act, the Uniform Durable Power of Attorney Act does not define the powers

that can be given an agent. Instead, the principal is responsible for setting forth the extent and

scope of each power being conferred on the agent.19 Includable in these powers is the power of

the agent to make healthcare decisions on behalf of the principal.20



                            WHEN THE POWER BECOMES EFFECTIVE

       While springing powers of attorney are easy to create, much difficulty lies in describing

in enough detail the events which are to “spring” the powers into effect. The most common

condition placed in a power of attorney is one which requires one or more doctors to determine

when the principal has become incapacitated or incompetent.21 In order to reduce some of the

burden placed on doctors in this situation, the condition that invokes the power of attorney needs

to be described in a very detailed manner, thus allowing the physicians to “comfortably give a

written opinion that the condition exists.”22

       Even after the physician has made the determination that the condition necessary to

invoke the power of attorney exists, the power does not become operative. In order for the agent

to become vested with the powers given, a verification is needed from the doctor stating that the


                                                  4
condition has been met.23 Most financial institutions and businesses are hesitant to honor

springing powers of attorney because they cannot be certain that the power has sprung to the

agent.24 Therefore, the verification is necessary to ensure third parties who are going to rely on

the actions of the agent that the conditions granting powers to the agent have occurred, and thus

they are justified in their reliance on the agent’s actions.25 Though there is no express

requirement in Oklahoma, some states require an “affidavit of reliance” be executed to ease the

fears of those who are to rely on the power of attorney.26

       The usefulness of a springing durable power of attorney can often be put in jeopardy by

the delays associated with the verification needed to invoke the powers conferred. Often,

physicians are hesitant to provide the verification needed to invoke the powers as they are afraid

of granting the agent the power to make decisions.27 Additional delays may result from a third

party’s refusal to rely on the verification given by the doctors. Either of these scenarios can

create substantial delays in the usefulness of the springing power of attorney.



                               SPRINGING POWERS UNDER HIPAA

       Powers of attorney which place a condition requiring the determination of incapacity or

disability by a doctor have recently encountered a major obstacle. The Health Insurance

Portability and Accountability Act of 1996 (HIPAA) placed serious constraints on the ability of a

physician to disclose information relating to the treatment of a patient.28 In fact, a written

verification of incapacity by a physician would be a “prohibited disclosure of medical records”

under HIPAA.29 Therefore, those powers of attorney which require a physician determination of


                                                  5
incapacity would be impossible to satisfy without a physician violating HIPAA. To avoid this

potential problem, a limited power of attorney can be drafted which would allow for the release

of medical records sufficient for the determination of whether the conditions necessary to spring

the powers into effect have occurred.30 Whether a special power of attorney is drafted or whether

provisions are added to the durable power of attorney, precautions must be taken in drafting

springing powers to ensure that the conditions necessary for the powers to be effective can be

met.


                                           CONCLUSION

        There is no doubt that the use of springing powers of attorney create uncertainty as to

when an agent becomes empowered to act for the principal. However, the need for springing

powers of attorney will continue as most people are uncomfortable with giving an immediate

power.31 Oklahoma has provided attorneys with the tools necessary to create these powers.

Though the powers granted are only limited by the desires of the principal, the attorney must take

great care in drafting the conditions that “spring” the power into effect. Careful drafting is

necessary to enable all parties to meet the requirements while also ensuring the principal that his

desires and wishes regarding the power of attorney are maintained.


                                            APPENDIX A

5 OKLA. STAT. § 1003(A) (2001):

A. The following statutory form of power of attorney is legally sufficient:
                          STATUTORY POWER OF ATTORNEY
NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING. THEY ARE
EXPLAINED IN THE UNIFORM STATUTORY FORM POWER OF ATTORNEY ACT. IF YOU HAVE
ANY QUESTIONS ABOUT THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS

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DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE
DECISIONS FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO
DO SO.
I __________ (insert your name and address) appoint __________ (insert the
  name and address of the person appointed) as my agent (attorney-in-fact) to
  act for me in any lawful way with respect to the following initialed
  subjects:
TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN FRONT OF (N) AND
IGNORE THE LINES IN FRONT OF THE OTHER POWERS.
TO GRANT ONE OR MORE, BUT FEWER THAN ALL, OF THE FOLLOWING POWERS, INITIAL THE
LINE IN FRONT OF EACH POWER YOU ARE GRANTING.
TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF IT. YOU MAY, BUT NEED
NOT, CROSS OUT EACH POWER WITHHELD.
INITIAL
_______ (A)        Real property transactions.
_______ (B)        Tangible personal property transactions.
_______ (C)        Stock and bond transactions.
_______ (D)        Commodity and option transactions.
_______ (E)        Banking and other financial institution transactions.
_______ (F)        Business operating transactions.
_______ (G)        Insurance and annuity transactions.
_______ (H)        Estate, trust, and other beneficiary transactions.
_______ (I)        Claims and litigation.
_______ (J)        Personal and family maintenance.
_______ (K)        Benefits from Social Security, Medicare, Medicaid, or other
                   governmental programs, or military service.
_______ (L)        Retirement plan transactions.
_______ (M)        Tax matters.
_______ (N)        ALL OF THE POWERS LISTED ABOVE. YOU NEED NOT INITIAL ANY OTHER
                   LINES IF YOU INITIAL LINE (N).

                            SPECIAL INSTRUCTIONS:
ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS LIMITING OR
EXTENDING THE POWERS GRANTED TO YOUR AGENT.
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Attach additional pages if needed.)
UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS EFFECTIVE
IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.
This power of attorney will continue to be effective even though I become disabled, incapacitated, or incompetent.
STRIKE THE PRECEDING SENTENCE IF YOU DO NOT WANT THIS POWER OF ATTORNEY TO
CONTINUE IF YOU BECOME DISABLED, INCAPACITATED, OR INCOMPETENT.


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I agree that any third party who receives a copy of this document may act
under it. Revocation of the power of attorney is not effective as to a third
party until the third party learns of the revocation. I agree to indemnify
the third party for any claims that arise against the third party because of
reliance on this power of attorney.
Signed this _______ day of _______, 19__

                          _______________________________________
                          (Your Signature)

                          _______________________________________
                          (Your Social Security Number)

State of _____________________________
(County) of __________________________

This document was acknowledged before me on

_______________ (Date)              by     ___________________________________
                                          (Name of principal)

                                          ___________________________________
                                          (Signature of notarial officer)

(Seal, if any)                            ___________________________________
                                          (Title and Rank)

                                          My commission expires: ____________

BY ACCEPTING OR ACTING UNDER THE APPOINTMENT, THE AGENT ASSUMES THE FIDUCIARY
AND OTHER LEGAL RESPONSIBILITIES OF AN AGENT.

1
  A. KIMBERLY DAYTON ET AL., ELDER LAW (2nd ed. 2003), (citing to Carolyn L. Dessin, Acting as Agent Under a
Financial Durable Power of Attorney: An Unscripted Role, 75 NEB. L. REV. 574, 576-81 (1996)).
2
  Id.
3
  OKLA. STAT. tit. 58 § 1071 et seq. (2001).
4
  OKLA. STAT. tit. 15 § 1001 et seq. (2001).
5
  Varley H. Taylor, Jr., 6A Vernon’s Okla. Forms 2d, Estate Planning § 2.2(a)(8) (2002).
6
  Mary Beth Guard, Who’s Got the Power?, BANKERS’ HOTLINE, Vol. 10 No. 10, (2000), available at
<http://www.bankersonline.com/articles/bhv10n10/bhv10n10a3.html>. See also, 6A Vernon’s Okla. Forms, supra
note 5, at § 2.2 (a)(2).
7
  6A Vernon’s Okla. Forms, supra note 5, at § 2.2(a)(8).
8
  R. Robert Huff et al., 1 OKLA. PROB. LAW & PRAC. § 28.23 (3d ed. 2003); see also, OKLA. STAT. tit. 15 § 1002
(2001).
9
  Id.
10
   OKLA. STAT. tit. 15 §§ 1006-1019 (2001).
11
   OKLA. STAT. tit. 15 § 1003(A) (2001). See Appendix A.
12
   Id.
13
   1 OKLA. PROB. LAW. supra note 8, at § 28.23.
14
   Id.

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15
   OKLA. STAT. tit. 1072.1(A)(2) (2001).
16
   Id.
17
   Vernon’s Okla. Forms, supra note 6, at § 2.2(a)(1).
18
   Id.; see also OKLA. PROB. LAW, supra note 8, at § 28.17 and OKLA. STAT. tit. 58 § 1072 (2001).
19
   See 2 OKLA. PROB. LAW, supra note 8, at § 42.15. For a sample Durable Power of Attorney.
20
   OKLA PROB. LAW, supra note 8, at § 28.17; see also supra note 8, at § 28.23, which states that a “statutory form
does not permit or authorize anyone to make medical or other health-care decisions for the principal.”
21
   Vernon’s Okla. Forms, supra note 6, at § 2.2(a)(8).
22
   Id.
23
   Id.
24
   Glen A. Yale, It’s Right to be Left, Holding the Power of Attorney, 17 Feb. PROB. & PROP. 54, 55 (2003).
25
   Id.
26
   Daniel M. Moore, Jr., Helping Clients Make the Most of Health-Care and Property POAs, 91 ILL. B.J. 35, 36
(2003); see also Linda S. Whitton, Crossing State Lines with Durable Powers, 17 PROB. PROP. 28, 29 (Oct. 2003).
27
   Id.
28
   Thomas J. Murphy, Drafting Health Care Powers of Attorney to Comply with the New HIPAA Regulations, 15
NAELA NEWS (No. 4, Aug. 2003).
29
   Id.
30
   Id. at 6.
31
   The use of springing powers of attorney may become more common as many of today’s families are non-
traditional families. Jennifer Tulin McGrath, The Ethical Responsibilities of Estate Planning Attorneys in the
Representation of Non-Traditional Couples, 27 SEATTLE U.L. REV. 75, 95 (2003).




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