An amendment to legislation with respect to the management of affairs on behalf of incapable people is currently being implemented in Oklahoma in an effort to protect the interests of the aging population.

Senate Bill 109 is being introduced on November 1, 2015 to allow a person to be subject to attorneyship and court-ordered guardianship at the same time.  As it currently stands, the appointment of a guardian in Oklahoma automatically revokes any powers of attorney executed by that person, meaning that if a guardian is appointed in respect of personal care, no power of attorney (whether in respect of property or personal care) remains valid.

The update was proposed in light of situations in which a person has executed a power of attorney for property, but no such document is executed in respect of personal care.  Prior to the amendment, the appointment of a guardian of personal care terminates the appointment of both attorneys for personal care and attorneys for property.  Most common in Oklahoma are scenarios in which an attorney for property attempts to sell an incapable person’s property, but runs into problems when no attorney for personal care had been appointed to assist in determining new living arrangements after the sale of the property.

In Ontario, the appointment of a guardian pursuant to the Substitute Decisions Act similarly terminates the appointment of an attorney chosen to act in the same respect.  However, in circumstances where an attorney is appointed in one domain only, the Court may appoint without disrupting the management by an attorney of the other aspect of decision making.

Ideally, when planning for one’s incapacity, both a power of attorney for property and a power of attorney for personal care should be executed.  Often, the focus on incapacity planning is on financial matters and risks to leave a person’s personal care in limbo if capacity issues emerge later in life.  While a guardianship application may be an option, the delay and expense in securing an appointment as guardian may not be in the best interests of the person.

Thank you for reading.

Nick Esterbauer