THE OKLAHOMA BAR JOURNAL 16 | MARCH 2026 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. 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 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 or by scanning the QR code.
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