General Durable Power of Attorney

This is a portion of a class I taught to estate planning attorneys and bankers.  (edited for your use and easier reading)

DURABLE POWER OF ATTORNEY

A durable power of attorney may be one of the most important tools that you can have for your own protection. Many of us (and more of us as time goes by) will reach advanced age and suffer the diminution of facilities and the onset of illness and disease. One result of our longer lives is that we will longer live with illnesses and diminished capacity. One can reasonably expect that we will, therefore, have a greater need for assistance during these months or years that our life is extended by the marvels of modern medicine.

You may already know the difference between a durable power of attorney and a power of attorney that is not durable. But as a short refresher, a power of attorney that does not particularly state that it will continue in full force and effect during incapacity of the grantor, does not remain in effect. My clients sometimes find that to be counter-intuitive, but this rule arose many years ago when the courts believed that a grantor needed to stay alert and protect himself or herself from the person holding the power, and if he or she were incapacitated they could not so protect themselves and so the power must lapse.  Therefore, if you want the person holding your power to be able to act for you when you are ill, be sure that the document giving that power state your intent that the power will continue in force, even if you are incapacitated.

The Oklahoma Statutes contain a  form for a power of attorney. Like so many things drafted by a committee, it is easily criticized, but I will leave that to others who are so inclined. For the purpose of this note I suggest that the statutory format has some distinct advantages. First, our courts generally try to construe statutes in such a way as to find them enforceable, and there is no such deference given to the writing of an individual attorney. Second, this form is widely used and widely recognized by the parties to whom you might expect to offer it.