Attorneys drafting estate plans and pre-surgery documents have multiple options for ensuring a client’s wishes are followed in the case of incapacitation. Understanding the key differences between these options is necessary when helping our clients access the future health care they desire. Notably, Oklahoma’s statutory health care power of attorney form does not provide for critical end-of-life decision-making without a separate advance directive. Additional provisions may also need to be included to counteract or enforce other important choices. Further, as medical care becomes progressively complex as our clients age and experience dementia, mental illness and/or access issues, it is becoming increasingly necessary that attorneys customize bare-bones statutory documents. This article explains Oklahoma-specific issues related to common legal health care documents and how attorneys can use advanced provisions to fully address the concerns of each unique client.

COMMON HEALTH CARE PLANNING DOCUMENTS 

Health Care Powers of Attorney (HPOAs)

Health care powers of attorney (aka medical powers of attorney, medical proxies or HPOAs) are legal documents in which a person (known as the “principal”) names a trusted third party as a medical decision-maker on their behalf (their “health care agent” or “medical proxy”).[1] HPOAs can be as simple as just naming a health care agent, or they can be multiple pages long with specific directions and limitations about the type of medical care a principal would and would not wish to receive. Often written as part of a broad estate plan, HPOAs may also be individually drafted in preparation for surgery requiring anesthesia, when declining health makes planning future medical care a priority or when a person with fluctuating physical or mental health desires a third party to step in immediately during future times of instability.

Importantly, an HPOA lacks the authority to enforce end-of-life decision-making[2] – this can only be addressed by an advance directive.[3] It should also be noted that while an HPOA may request that any DNR (do-not-resuscitate) issued be respected, an HPOA itself cannot stop emergency medical professionals from resuscitation efforts – only medical orders, such as DNRs and physician orders for life-sustaining treatments (POLST), can be used for this purpose.[4] Consequently, it’s very important for practitioners to ensure we fully understand the exact needs our clients have in order to draft and advise upon the documents necessary to affect their wishes.

Advance Directives

Advance directives are legal documents that not only name a trusted medical decision-maker but also allow the principal to make legally enforceable end-of-life decisions in advance of a medical crisis.[5] Specifically, an advance directive allows a principal to choose when lifesaving measures should be stopped if they are medically incapable of making their own decision while in one of the following states: 1) a terminal illness with no reasonable expectation of recovery, 2) a persistent vegetative state or 3) an end-stage condition that results in incompetency and complete physical dependency.

In some jurisdictions, HPOAs and advance directives are included in the same statutory form, which leads to the powers being discussed interchangeably. In Oklahoma, however, the powers are controlled by two separate statutes and statutory forms,[6] which can lead to the accidental exclusion of end-of-life decision-making if only an HPOA is written. Notably, the Oklahoma statutory HPOA form specifically advises that it cannot be used to make decisions regarding artificial nutrition and hydration (tube feeding and IV). Instead, these choices must be set forth and initialed separately, substantially following the statutory advance directive form.

The importance of this decision is magnified for principals who express fear of “being kept alive in a vegetative state,” similar to the case of Terri Schiavo.[7] Oklahoma law prohibits the removal of artificial nutrition and hydration under such circumstances, unless an advance directive has been written.[8] As withholding artificial nutrition and hydration may be the only way to allow a principal in such a state to die naturally, choosing to draft an advance directive over (or in addition to) an HPOA is critical.

HPOA and Advance Directive Combination

While Oklahoma’s statutory advance directive form must be substantially followed to be effective, Oklahoma’s statutory HPOA form rejects such formalities.[9] Consequently, they may be combined,[10] and end-of-life decision-making can be part of a standard estate planning practice, even for young families. As death and incompetence are often not foreseeable, creating documents that plan for the worst allows principals to protect their dignity, even when they are unable to speak for themselves.

CREATING EFFECTIVE HPOAS AND ADVANCE DIRECTIVES 

An HPOA or advance directive may be created by any competent person over the age of 18.[11] The document(s) must be in writing, signed by the principal and witnessed by two adults who are not named as agents and who are not heirs of the principal.[12] An HPOA may be notarized instead of witnessed; an advance directive must be witnessed.[13] For ease of interstate portability, the author recommends both witnesses and a notary. The agent chosen by a principal may not be one of the principal’s health care providers at a long-term health care facility, unless that person is related to the principal.[14]

When HPOAs are Effective

By default, HPOAs are written to only become effective when a physician determines a principal is no longer able to make their own medical decisions (incompetence).[15] This can mean physical inability, such as being in a coma or under anesthesia, or psychiatric inability, such as advanced dementia or unmedicated schizophrenia. Some HPOAs may be drafted to require both the attending physician and a second physician to determine incompetence before the agent may make decisions on the principal’s behalf.

Less commonly, HPOAs may be written to become effective immediately upon signing. This type of immediate HPOA may be used for a person with fluctuating mental health, when there are language barriers between a principal and expected medical caregivers or when there are complex needs that may slow down care. It is important to note that immediately effective HPOAs cannot override the will of a mentally competent adult. Instead, immediately effective HPOAs work as a form of delegation, allowing the health care agent to seek medical care on behalf of the principal in a faster and easier manner without the need for a doctor to make an incompetency determination for every decision.

HPOAs are revocable by the principal at any time, in writing or by communicating the same to a health care provider.[16]

When Advance Directives Are Effective

An advance directive is only effective when a principal can no longer make their own medical decisions, as determined by the principal’s attending physician and another physician.[17] This can be as a result of permanent physical unconsciousness or psychological incapacity. An advance directive may be revoked by the principal at any time, in any manner, regardless of mental or physical state.[18]

When HPOAs Are Not Effective

Importantly, HPOAs signed by individuals who are already facing incompetency are not legally enforceable. Further, decisions made by a health care agent under an improper HPOA that are against a principal’s wishes may be deemed a violation of the principal and the principal’s constitutional rights.[19] This point should be particularly emphasized for principals with fluctuating mental illness, where forced medication, treatment and/or involuntary institutionalization may later become necessary, or for individuals experiencing advanced dementia, where combative behavior may increase in frequency. Attorneys can avoid an ethical grey area by properly screening their clients for incapacity and seeking consultation with a mental health provider when advisable.

When Advance Directives Are Not Effective

Like HPOAs, advance directives signed by individuals without capacity are not legally enforceable. Because of the permanent nature of advance directives, the consequences for their fraudulent creation are significantly greater than those of HPOAs. Agents who falsely create or coerce a principal into creating an advance directive are guilty of a felony.[20] Practitioners who undertake proper undue influence screening can avoid these bad actors and help prevent elder abuse. Attorneys who feel an older client is being taken advantage of by their caregiver may report the abuse to Adult Protective Services.[21]

ASSESSING HPOA/ADVANCE DIRECTIVE PRINCIPALS 

Accordingly, it is incredibly important for practitioners to ensure the competency of the person for whom they are drafting an HPOA or advance directive. The attorney assessment worksheet and the undue influence screening tool found in the Assessment of Older Adults with Diminished Capacities: A Handbook for Lawyers[22] (the handbook) are excellent resources for helping properly assess whether a principal is competent to sign an HPOA or advance directive or if, instead, a guardianship is necessary. After an initial interview, the handbook suggests the attorney use the following chart to consider how to proceed with possible representation of an individual with diminished capacity:

CLIENT CAPACITY	ACTION OPTIONS
No or minimal evidence of diminished capacity.	Proceed with representation and transaction.
Mild concerns – Some evidence of diminished capacity, but less than substantial.	1)     Proceed with representation/transaction. An associated note to the file may be helpful to document your conclusion. 2)     Explore decision support strategies to reinforce capacity. 3)     Consider medical referral if medical oversight lacking. 4)     Consider consultation with mental health professional. 5)     Consider referral for formal clinical assessment to substantiate conclusion, with client consent.
More than mild concerns about capacity even with decision supports, or decision-support is not available.	1)     Explore decision support strategies further to reinforce capacity. Clear documentation of concerns and actions contemplated or taken will be important here. 2)     Medical referral if medical oversight lacking. 3)     Consultation with mental health professional. 4)     Refer for formal clinical assessment, with client consent.
Severe concerns – Client clearly lacks capacity to proceed with representation and transaction.	1)     The representation cannot proceed, and alternative legal approaches must be taken (for example, working with family members). 2)     Referral to mental health professional to confirm conclusion. 3)     Do not proceed with case; or withdraw, after careful consideration of how to protect client’s interests. 4)     If an existing client, consider protective action consistent with MRPC 1.14(b).

 

PERSONALIZED HPOA and Advance Directive Provisions

HPOAs and advance directives both include sections where a principal can provide additional limitations or directions to their agent. This often-ignored space is an important aspect of medical planning, not only legally speaking but also from an emotional standpoint. It is in this space where an attorney can help their client feel truly heard and in control of their future. The following are some advanced provisions to consider including.

Dementia Provisions

While the statutory advanced directive addresses ending lifesaving measures if a principal is experiencing “an end-stage condition ... which results in severe and permanent ... incompetency” because dementia and Alzheimer’s disease are fluctuating conditions, specific language can help ensure a principal’s wishes are properly affected.

Dementia/Alzheimer’s provisions can be simple, or they can be extremely detailed. A simple provision could look similar to the following:

If I am in an advanced stage of dementia, and I do not have the quality of life that my agent believes I would want, I request that no lifesaving treatment be given. I wish to be given comfort care only (including but not limited to sedation when appropriate). My agent should be given all options available to aid in a peaceful death.

Compassion & Choices’ dementia advance directive[23] (excerpt below) is a great resource for families seeking to dig in and make a specific plan for a wide range of dementia-related issues:

	Live as Long as Possible	Treat Me but Not Aggressively	Allow a Natural Death
If my physician or health care provider has determined my dementia has progressed to advanced or late stage, then I want
If I require around-the-clock (24 hour) assistance and supervision, then I want
If I no longer recognize my loved ones, then I want
If I am unable to walk or move safely without assistance from a caregiver, then I want
If I am unable to bathe and clean myself without assistance from a caregiver, then I want
If I am unable to remain at home and have to live in a nursing facility, then I want
If I no longer have control of my bladder (urinary incontinence) or bowels (bowel or fecal incontinence), then I want
If I am no longer aware of my surroundings (where I am, the date/year, who is with me), then I want
If I am unable to clearly communicate my thoughts or needs (words and phrases do not make sense), then I want

 

Advance Directive for Mental Health Treatment

Principals who experience fluctuating mental illness and wish to be proactive instead of risking arrest and/or involuntary commitment should consider completing an advance directive for mental health treatment. Similar to a standard advance directive, the mental health advance directive allows for a principal to choose a trusted agent to assist them in seeking mental health care when in a state of diminished capacity and to proactively consent or decline specific mental health treatment in advance of needing it. The directive becomes effective when a psychiatrist and another physician determine that the principal is unable to receive and/or evaluate and/or communicate to an extent that they lack capacity.

In Oklahoma, "mental health treatment" includes the following by default: convulsive treatment, treatment with psychoactive medication and admission to and retention in a health care facility for a period of up to 28 days.[24] A principal may modify this consent as well as outline their own unique needs, such as medication regimen, preferred hospital(s), trusted medical provider(s), successful conflict de-escalation techniques and/or other special instructions to their agent.

Hospice and Dying at Home

Hospice is a widely misunderstood and greatly underutilized end-of-life tool. Covered under Medicare, hospice provides free medical support to those at the end of life with a goal of easing suffering and making the last six months of a person’s life as pleasant as possible. The majority of the author’s clients express a sincere interest in dying at home and not in a hospital. However, the typical time spent on hospice is only around three weeks, and over 30% of Americans end up dying in the hospital.[25] Including a simple provision stating a principal’s preference to die at home with the aid of hospice can make a significant difference in the quality of life and death of our clients.

Addressing Pregnancy

The recent Georgia case of Adriana Smith has sparked debate across the country with respect to whether a permanently unconscious woman should be forced to carry a pregnancy to term.[26] The Oklahoma advance directive form specifically states that a pregnant woman cannot be taken off life support unless she states so in her advance directive ahead of time. For female principals of childbearing age, consider including the following permissive (not obligatory) provision:

I specifically authorize that during a course of pregnancy, if my health care proxy believes I would not wish to be kept alive, that they may opt to remove life-sustaining treatment and/or artificially administered hydration and/or nutrition shall be withheld or withdrawn.

LGBTQ+ Issues

While Obergefell[27] rights are no longer in immediate danger,[28] attorneys assisting clients who are part of LGBTQ+ communities may wish to include explicit protections, in case the right to gay marriage is ever challeneged again. The author includes the following provision in her documents for her LGBTQ+ clients:

When a person is named as a relative in this document, that person shall be treated as the relationship listed, regardless of any (non-divorce/DV) governmental/judicial decisions, actual blood relation, or  court record.

Religious and Secular Preferences

Religious or secular choices are also a way of helping our clients feel empowered to know they will die with the principles with which they lived. For religious families, outlining specific hospital(s) of choice, requesting the principal’s spiritual leader provide a blessing at the end of life and requesting religious services can help a client feel less nervous about dying.

For secular families, specifically requesting to only be admitted to a secular hospital(s) can help ensure the principal feels safe and that their choices will be honored, regardless of religious affiliation. The following provision can help bolster this confidence:

Any physician unwilling to comply with my directive shall immediately transfer my care to another health care provider. Until my care is transferred and accepted by a willing provider, my attending physician must comply with the medical treatment regardless of objection, if lack of action would likely result in my death. 63 OK Stat §3101.9 (Physician or health care provider unwilling to comply with act).

CONCLUSION 

Every individual deserves the peace of mind that comes from knowing their health care wishes will be honored. By carefully preparing an HPOA and an advance directive and by adding provisions that reflect personal values and unique needs, attorneys can help their clients maintain control even during times of incapacity.

Sample forms for health care power of attorney, advance directive for health care and advance directive for mental health treatment can be found at https://bit.ly/4qcJLyy.

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ABOUT THE AUTHOR

Corinne Taylor-Davis is the founder of Rosetta Law, the plain language law firm. Ms. Taylor-Davis' practice focuses on approachable estate planning and small business counsel. She is passionate about helping her clients understand their options and develop pragmatic solutions in language everyone understands. Ms. Taylor-Davis received her law degree from Suffolk University Law School and her business degree from Southern New Hampshire University.

 

 

 

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ENDNOTES

[1] See 63 O.S. §§3111.1-13 (Oklahoma Health Care Agent Act).

[2] See 63 O.S. §3111.5.

[3] See 63 O.S. §3101.4(B).

[4] POLSTs (physician orders for life-sustaining treatment) and DNRs (do-not-resuscitate) are medical orders that may only be drafted by physicians. See 63 O.S. §§3105.1-5 (Physician Orders for Life-Sustaining Treatment Act); 63 O.S. §§3131.1-14 (Oklahoma Do-Not-Resuscitate Act). As this article’s focus is on how attorneys can assist clients, the author has chosen not to further expound on these forms.

[5] See 63 O.S. §§3101.1-3102A (Oklahoma Advance Directive Act).

[6] See 63 O.S. §3111.5 (power of attorney for health care form); 63 O.S. §3101.4 (advance directive form and procedures).

[7] Radhika Chalasani, “A Look Back: The Terri Schiavo Case,” www.cbsnews.com, March 31, 2016, https://bit.ly/4qjtvMm.

[8] See 63 O.S. §3080.3; 63 O.S. §3080.4.

[9] See 63 O.S. §3111.5.

[10] The HPOA form names a health care “Agent,” whereas the advance directive form names a “Health Care Proxy.” The author combines these sections, substantially following the advance directive form and including agent obligations.

[11] See 63 O.S. §3111.3; 63 O.S. §3101.4. Individuals under the age of 18 may create HPOAs and advance directives in certain circumstances. See 63 O.S. §2602.

[12] See 63 O.S. §3111.3; 63 O.S. §3101.4.

[13] Id.

[14] See 63 O.S. §3111.3(B).

[15] See 63 O.S. §3111.3(C).

[16] See 63 O.S. §3111.4.

[17] See 63 O.S. §3101.4.

[18] See 63 O.S. §3101.6.

[19] In re Guardianship of Moe, 81 Mass. App. Ct. 136, 960 N.E.2d 350 (Mass. App. Ct. 2012) (guardian sought to end pregnancy against the wishes of schizophrenic principal, held in violation of due process).

[20] See 63 O.S. §3101.11.

[21] For additional examples of how HPOAs and advance directives may involve elder abuse, see Lori Stiegel, "Legal Issues Related to Elder Abuse, A Pocket Guide for Law Enforcement," American Bar Association Commission on Law and Aging, 2014, https://bit.ly/46uSllf.

[22] American Bar Association Commission on Law and Aging American Psychological Association, Assessment of Older Adults with Diminished Capacities: A Handbook for Lawyers, 2021, https://bit.ly/3ZKFRCm.

[23] Compassion & Choices, “Dementia Values and Priorities Tool,” 2025, https://bit.ly/4tfqgbz.

[24] See 63 O.S. §43A-11-106.

[25] Mamta Bhatnagar and Keith R. Lagnese, “Hospice Care,” PubMed, StatPearls Publishing, March 13, 2023, https://bit.ly/4koZvxq.

[26] Becca Longmire, “Son of Georgia Woman Who Gave Birth While Brain Dead Is ‘Making Progress’ in the Hospital, Says Family,” People, 2025, https://bit.ly/4qlMjL5.

[27] Obergefell v. Hodges, 576 U.S. 644 (2015).

[28] Davis v. Ermold, cert. denied, No. 25-125 (U.S. Nov. 10, 2025).