FAQs

You should consider making copies of your Advance Directive for your personal records, your family, your phy­sician, your attorney, your health care proxy and alternate health care proxy. Have additional copies ready to take with you when you require hospitalization or other care as your health care providers will need a copy for your medical record. You should keep a list of persons to whom you have given a copy of your Advance Directive so that if you later change it or revoke it, you may collect the copies.

Yes. If you signed a Directive to Physicians under the Oklahoma Natural Death Act, which was the law in effect prior to Sept. 1, 1992, or an Advance Directive for Health Care under the law in effect prior to May 2006, it remains valid until you revoke it. However, it is recommended that you consider signing a new Advance Directive for Health Care because of additional options available to you under the current law.

No. It is illegal for anyone to require that you execute an Advance Directive as a condition of receiving health care services or health insurance coverage. It is also illegal for anyone to modify your life insurance coverage, or to refuse to issue life insurance coverage to you, because you have executed an Advance Directive.

Yes. An Advance Directive may be revoked by you, either entirely or as to any part, at any time and in any manner, regardless of your mental or physical condition. The revocation becomes effective when you (or a person who witnessed the revocation) notify your attending physician or other health care provider of the revocation.

The Advance Directive requires that you initial multiple times but requires your signature only once at the end. Remember that this is a legal document, and if questions arise concerning portions that seem unclear, you may wish to discuss them with your physician and/or attorney.

An Advance Directive must be signed before two witnesses who are 18 or older. The witnesses cannot be beneficiaries under your will, nor may they be persons who would inherit your property if you died without a will. An Advance Directive is not required to be notarized.

A DNR consent form deals only with the subject of cardiopulmonary resuscitation (CPR) in the event of a cardiac or respiratory arrest. In such a document, a person can state that the person does not consent to the administration of CPR in the event the person’s heart stops beating or the person stops breathing.

In the event you signed more than one valid Advance Directive, none of which have been revoked by you, the most recently signed Advance Directive will be considered your last wishes and the one given effect.

Oklahoma law requires that both your attending physician and another physician who has examined you determine that you are incapable of making an informed decision regarding your health care, including the provision, withholding or withdrawal of life-sustaining treat­ment. This determination has to become part of your medical record.

If you signed an Advance Directive in another state, which provides for the withholding or withdrawal of life-sustaining treatment or for the appointment of another to provide, withhold or withdraw life-sustaining treatment, and that document complied with the law of the state in which signed, it is valid in Oklahoma to the extent it does not exceed authorizations under Oklahoma law. However, Oklahoma residents should sign an Advance Directive that complies with the Oklahoma law if at all possible.

Oklahoma law provides that a person who has been diagnosed as pregnant and whose attending physician is aware of the diagnosis will be provided with life-sustaining treatment and artificially administered hydration and nutrition unless the person has, in her own words, specifically authorized that during a course of pregnancy, life-sustaining treatment and/or artificially administered hydration and/or nutrition shall be with­held or withdrawn.

Yes; Section III, titled “Anatomical Gifts,” gives you the opportunity to direct the donation of your entire body or designated body organs.

An Advance Directive covers three conditions: 1) terminal condition, 2) persistently unconscious and 3) end-stage condition.

“Persistently unconscious” means an irreversible condition as determined by your attending physician and another physician, in which thought and awareness of self and environment are absent.

A terminal condition is an incurable, irreversible condition that, even with the administration of life-sustaining treatment (such as putting a person on a respirator, dialysis, pacemakers, surgery, blood transfusions and antibiotics) will, in the opinion of your attending physician and another physician, result in death within six months.

In that case, your attending physician is required, as promptly as practicable, to take all reasonable steps to arrange for your care by another physician.

An Advance Directive for Health Care is a written legal document which allows you to instruct your attending physician whether or not you wish to be given life-sustaining treatments and artificially administered nutrition (food) and hydration (water) and to give other medical directions that impact the end of life. Its purpose is to recognize your right to control some aspects of your medical care and treatment, primarily the right to decline medical treatment or direct that it be withdrawn even if death ensues. An Advance Directive for Health Care may include a living will, the appointment of a health care proxy (a proxy is a person authorized to act for another) and directions for organ donation.

An “end-stage condition” means a condition caused by injury, disease or illness which results in severe and permanent deterioration indicated by incompetency and complete physical dependency for which treatment of the irreversible condition would be medically ineffective.

A health care proxy is a person who is authorized to make medical treatment decisions for you in the event that you are unable to make such decisions. Section II of Oklahoma’s Advance Directive allows you to appoint a health care proxy (such as your spouse or adult child) to make whatever medical treatment decisions you could make if you were able. You can also appoint an alternate (back-up) health care proxy to serve in the event your health care proxy is unable or unwilling to serve. Your physician is directed to follow the instructions of your health care proxy. While your health care proxy can make decisions regarding life-sustaining treatment and artificially administered food and water, such decisions must be in accord with your wishes on those subjects as you specify in the living will portion of your Advance Directive. Therefore it is important that you discuss these subjects in advance with your health care proxy and that you choose someone who supports your wishes as set forth in your living will.

In the living will portion of your Advance Directive (Section I) you may direct that your life not be extended by life-sustaining treatment if you 1) are in a terminal condition, 2) are persistently unconscious or 3) have an end-stage condition. Alternatively, you can direct that you are to be given life-sustaining treatment if you are in any of those three conditions.

You also have the ability to direct whether or not you wish to receive artificially administered nutrition (food) and hydration (water) if you are unable to take food and water by mouth in each of the three conditions described. Artificially administered food and water normally involves the surgical insertion of a feeding tube into your stomach.

Oklahoma law does provide that even if life-sustaining treatment or artificially administered nutrition and hydration are withheld or withdrawn, you shall be provided with medication or other medical treatment to alleviate pain, and you will be provided with oral consumption of food and water if you are able to eat or drink.

An Advance Directive goes into effect when your attending physician and another physician determine that you are no longer able to make decisions regarding your medical treatment and you are in one of the three conditions explained on next page. Advance Directives do not determine your medical treatment in situations that do not affect your continued life, such as routine medical treatment and non life-threatening medical conditions.

A copy of an Advance Directive for Health Care may be obtained from the Oklahoma Bar Association, or your attorney.

Any person of sound mind who is 18 or older.

A Do Not Resuscitate Order is just that: an order mandating that life saving techniques will not be administered if you were to have a sudden heart attack or other life threatening event. Unless there is a specific reason (usually terminal illness or advanced dementia) that you would not want to be resuscitated in the event of an emergency do not execute a DNR.

Durable Powers of Attorney are valid until either the principal revokes it or dies.

No, in fact a Last Will and Testament guarantees that the estate will be overseen by the Probate Court.

If you add anyone to the ownership of your home or your accounts, that person OWNS that account along with you. So, if that person is sued (think car wreck, divorce, unpaid debts, etc) then the creditor can potentially take your home, and your accounts because the co-owner of the home or account OWNS the account. While that certainly isn’t the intent, be very careful with re-titling assets.

In some cases, yes. However, they are rarely the best method of holding property. Only a lawyer is qualified to advise you on the best method of holding title to property and your case will differ from every other case.
The matter of joint tenancy involves many very difficult problems. Usually property of considerable value is involved, often all the property which one or two persons possess. Only the lawyer is specially trained and licensed by the state of Oklahoma, to advise on legal problems. See a lawyer before, not after, you are put to trouble and unnecessary expense.

Yes. Anytime co-owners disagree concerning the multi­tude of decisions that must be made concerning property, many difficulties and even expensive litigation may result. The mental incompetency of one joint tenant could require a guardianship for his or her share to make deci­sions affecting the property. Joint tenancies can be severed by bankruptcy proceedings, actions of creditors and other means.

Yes, but the purchaser will receive title to only an undivided one-half interest. The other one-half inter­est remains with the joint tenant who did not convey. If the property is the homestead of the couple, other restric­tions apply. Making such a conveyance destroys the joint tenancy and title is held as tenants in common.

Yes

Yes, because the entire property in joint tenancy passes to the survivor free from any obligation to the children. An experience that has happened with unfortunate fre­quency is for the surviving widow to remarry and place the property in joint tenancy with the second husband with the result that upon her death, the stepfather gets it all to the exclusion of the children.

Sometimes. After the death of a joint tenant, that per­son’s interest in real property must be terminated to give clear title to the surviving joint tenant. This can be done in one of three ways. The surviving joint tenant, personal representative, attorney or affiant with personal matters within the affidavit, may terminate the joint tenancy by filing an affidavit and certified copy of the death certifi­cate with the county clerk. Probate proceedings are not required. If the surviving tenant is not the spouse, a court proceeding called termination of joint tenancy is required to clear title. This procedure is simpler and less costly than probating the entire estate. Finally, if other assets of the decedent require the estate to be judicially administered, the joint tenancy is severed as a part of the administration proceedings.
For small estates passing completely to a spouse, joint tenancies can save the expense of administering the estate on the death of the first to die. Joint tenancies in a large marital estate or joint tenancies with someone who is not your spouse, while saving the cost of “probate,” may have unanticipated consequences costing your family a far greater amount than the probate of a will. Please consult with an attorney.

If the joint owners are husband and wife, there is no Federal or Oklahoma Estate Tax due with respect to the joint property at the first spouse’s death. The unlimited marital deduction applies. At the death of the second spouse, the property will likely be subject to Federal Estate Tax, unless it is bequeathed to a new spouse or to a charity, or unless the second spouse’s estate is too small to require payment of Federal Estate Tax.
For non-spousal joint owners, if one of them provides the entire purchase price and that owner dies first, then the full value of the property is included in the estate for tax purposes. If a joint owner who provides none of the purchase price dies first, then the property is not included in the estate. If neither of two joint owners provides any of the purchase price, e.g., where they both received their joint interests by gifts or inheritance, then the estate of the first to die must include half of the property’s value. In all these situations, when the second owner dies owning the property alone, its full value is included in the estate.
In addition, under certain circumstances, the Federal Generation-Skipping Transfer tax may apply to impose an additional tax liability on a deceased joint owner’s estate if the surviving joint tenant is in his or her grandchildren’s generation or in a lower generation, such as great-grand­children.

Probably because they have been rather widely recom­mended by well-meaning persons who do not understand their complexities. Joint tenancies are very deceptive, be­cause their advantages appear so simple while their disad­vantages are not commonly known or understood.

No. A properly drawn will disposes of all of a person’s property according to the person’s plan at death. A joint tenancy only affects the particular property described in the instrument creating it. Therefore, a will is needed to dispose of any property not held in joint tenancy.

As to Oklahoma Gift Tax, Oklahoma repealed its Gift Tax effective January 1, 1982. Therefore, no Oklahoma Gift Tax would be due when a joint tenancy is created.
Under Federal Gift Tax Law, spouses have an unlimited marital deduction for lifetime gifts between spouses, so there would be no Gift Tax upon the creation of a joint tenancy with one’s spouse. Nor would there be any Feder­al Estate Tax on the joint property at the death of the first spouse. The deceased spouse’s half passes under the Estate Tax unlimited marital deduction. Oklahoma’s Estate tax has been repealed, effective January 1, 2010.
When property is placed in joint ownership with someone other than the spouse, a Federal Gift Tax may be due. If one person provides the entire purchase price and title is taken jointly with a person other than the spouse, a gift of half the property is made. Two exceptions to this rule are joint bank accounts and U.S. Savings Bonds. There is no gift until and unless the funds are withdrawn from the joint account or Savings Bond by the persons who did not provide the money deposited. For many gifts, the first $13,000 in value per year per donee is excluded from Gift Tax and other exclusions and credits may apply.

Not necessarily. As reflected by previous answers, the property might be subject to estate tax in more than one estate. Proper planning through a will might eliminate tax on the property at the second death.
A will directing disposition of certain property to the spouse will generally have the same effect as if the prop­erty had been owned in joint tenancy.

It is a particular type of property ownership by which two or more persons may own real estate or personal property together. It differs from other types of co-own­ership in several respects, the most commonly known is that upon the death of one joint tenant, his or her interest automatically passes to the surviving joint tenant, who becomes sole owner.

Yes. Also Federal Government Bonds may be cashed by either one alone. However, there are some thrift institu­tions which require both signatures.

No.

Yes.

Because of the “survivorship” feature. If one co-owner dies, his or her interest terminates in favor of the survivor rather than passing according to the will of the deceased owner or under the laws of inheritance.