Saturday, November 26, 2016

2016 legislative update

HB3017 creates the Physician Orders for Life-Sustaining Treatment Act, codified at 63 O.S. 3105.1 et seq. This Act promotes use of a form, called the POLST form, which can be found, together with other information on this matter, at The POLST form can be signed by a person otherwise holding authority to make end-of-life decisions, specifying the decisions regarding various issues including nutrition, hydration, and cardio-pulmonary resuscitation. It does not appear that this form would replace Advanced Directives, but would work together with such forms so that the medical providers can have a single form for reference regarding a particular patient. Keep in mind that the representative's authority to sign a POLST form must still be established. A guardian appointed under Title 30 would lack authority absent an express court order under 30 O.S. 3-119. A DPOA may be insufficient to establish authority, particularly absent express reference. The Act modifies 58 O.S. 1072.1(B)(1)(a), in a manner that may be unclear. The new language appears to create an exception to an exception, which would allow an attorney-in-fact under a DPOA to execute a POLST form if specifically authorized. (It is unclear from the statute's text how specific this authority needs to be.) Please note, however, the summary of the bill published by a widely used legislative tracking service appears to reach the opposite conclusion – that DPOAs cannot authorize execution of the POLST form. The practitioner should examine this statutory issue with care.

SB874 amends 58 O.S. 393 to raise the limit for small-estate affidavits, from $20,000.00 to $50,000.00. Great news for clients holding interests in small estates.

SB1495 revises 12 O.S. 2024 and 30 O.S. 3-110, to address the parties who may intervene or participate in Title 30 guardianship proceedings. This statute can be referenced as the “neice and nephew act.” Section 3-110 is amended to require notice to all adult children of any deceased brothers and sisters (in addition to existing provision requiring notice to brothers and sisters), when the prospective ward has no adult children or parents. The revision to Section 2024 is evenmore confusing. The revision creates a rebuttable presumption that a person entitled to notice of guardianship proceedings under 30 O.S. 3-110 have a right to intervene in the guardianship proceedings. It is unclear why this revision would have been needed, unless there are courts in Oklahoma who are refusing to allow participation by persons who are entitled to notice of the proceedings.

SB902 prohibits undocumented persons (non-citizens who are not legal residents or otherwise legally present in the United States) from serving as guardian, unless the court determines that there are no other qualified individuals available and that it is in the best interest of the prospective ward to appoint such a person, amending 30 O.S. 4-104, 4-105.

The Revised Uniform Fiduciary Access to Digital Assets Act was proposed as SB1107, but did not receive a hearing. The Act, as proposed, needed drafting work to conform with Oklahoma law on guardianships. This Act, which is widely supported around the country, should receive attention again in the next session.