Okla. Stat. tit. 16, sec 6.7

Validity of Instruments Executed by Attorneys-in-Fact

Standard adopted by recommendation of Report of 1983 Title Examination Standards Committee, see Report, 54 O.B.J. 2379, 2383-84 (1983), approval of the Real Property Section, November 3, 1983, and adoption by the House of Delegates, November 4, 1983. The 1993 Report of the Title Examination Standards Committee recommended revising this standard to reflect the legislature's amendment of relevant statutes. The recommendation included, as a consequence of the 1993 amendment to 58 O.S. § 1071, deleting the former Caveat regarding conveyances and encumbrances of homestead interests. The Committee's 1993 proposal also added a Comment regarding the effect of a revision of 58 O.S. § 1075, 64 O.B.J. 3245, 3250 (10/30/93). The Real Property Section approved the amended standard on November 4, 1993, and the House of Delegates adopted it on November 5, 1993, 64 O.B.J. 3409 (11/13/93). The 1994 Report of the Title Examination standards Committee recommended amending this standard to reflect various revisions of the Durable Power of Attorney Act. 65 O.B.A.J. 3334 (10/22/94). The Committee's recommendation was approved by the Real Property Section on November 17, 1994, and adopted by the House of Delegates on November 18, 1994. The 1997 Report of the Title Examination Standards Committee proposed adding subsection A.3 and supporting authority. 68 O.B.J. 3297 - 98 (10/18/97). The Real Property Law Section approved the proposal, November 6, 1997 and the House of Delegates adopted the amendment, November 7, 1997. 68 O.B.J. 3707 (11/15/97). The 2000 Report of the Title Examination Standards Committee proposed amendments that brought the standard into compliance with various legislative acts concerning attorneys-in-fact, including the Uniform Statutory Power of Attorney Act. 71 O.B.J. 2629 (10/14/00). The Real Property Law Section approved the proposal, November 16, 2000 and the House of Delegates adopted the amendment, November 17, 2000. 71 O.B.J. 3136 (12/9/00). The 2013 Report of the Title Examination Standards Committee proposed amending this Standard to reflect that a power of attorney terminates upon the appointment of a guardian or custodian for the attorney in fact’s ward. The Real Property Section approved the proposal on November 14, 2013 and the House of Delegates adopted the amendment on November 15, 2013. The 2015 Title Examination Standards Sub-Committee proposed amending this Standard to to add a new Standard 6.7 D., and to amend Standard 6.7 C. and E. to reflect changes in the statute to which the Standard applies. The Real Property Section approved the proposal on November 5, 2015 and the House of Delegates adopted the amendment on November 6, 2015. (superseded document available)

Title Examination Standards
Chapter 1, App.
Chapter 6. Execution, Acknowledgment and Recording
§6.7. Validity of Instruments Executed by Attorneys-in-Fact.

A. An instrument affecting title to real estate executed by an attorney-in-fact duly appointed and empowered, and not subject to the provisions of paragraphs B, C or D below, is acceptable to vest marketable title in the grantee, if:
1. 1. the power of attorney, other than a durable power of attorney, was executed, acknowledged and recorded in the manner required by law; or
2. 2. the power of attorney is a durable power of attorney recorded in the manner required by law and:
  1. a. executed after Novemmber 1, 1988, under the Uniform Durable Power of Attorney Act (58 O.S. §§ 1071-1077); or
  2. b. executed between June 16, 1965 and September 1, 1992, under the provisions of the Special Power of Attorney Act (58 O.S. §§ 1051-1062); or
  3. c. executed after November 1, 1998, under the provisions of the Uniform Statutory Power of Attorney Act (15 O.S. §§ 1001-1020).
3. 3. Notwithstanding the foregoing, an instrument executed by an attorney in fact that has been recorded for at least five (5) years is valid even though no power of attorney was recorded in the office of the county clerk of the county in which the property is located.
B. An instrument that otherwise conforms with the provisions of paragraph A above fails to vest title in the grantee if a revocation of the power of attorney by either
1. 1. the principal, or
2. 2. a conservator, guardian or other fiduciary of the principal appointed by a court of the principal's domicile, has been recorded in the same office in which the instrument containing the power of attorney was recorded.
C. An instrument that otherwise conforms with the provisions of paragraph A above fails to vest title in the grantee if, prior to November 1, 2015, the power of attorney has otherwise terminated by law, and such termination either appears in the abstract or is within the personal knowledge of the examiner.
D. An instrument that otherwise conforms with the provisions of Paragraph "A" above fails to vest title in the grantee if, on or after November 1, 2015, notice of revocation of the power of attorney has been recorded in the county clerk's office in the county in which the power of attorney was recorded.
Authority: 15 O.S. §§ 1001-1020; 16 O.S. §§ 3, 20, 21, 27a and 53; 58 O.S. §§ 1071 et seq .
E. An instrument that otherwise conforms with the provisions of paragraph A above fails to vest title in the grantee if, prior to November 1, 2015, the power of attorney has terminated by law by reason of the appointment of a conservator or guardian of the principal as set out below:
1. 1. for a durable power of attorney which does not contain a nomination of the person to act as conservator or guardian, such power of attorney terminates by reason of the appointment, on or after November 1, 2010, of a conservator of the estate, or guardian of the estate, of the principal in such power of attorney and upon notice of such appointment as required by statute, or, 2. for a durable power of attorney containing a nomination of the person to act as conservator or guardian, such power of attorney terminates by reason of the appointment, on or after November 1, 2010, of a conservator of the estate, or guardian of the estate or guardian of the person, of the principal in accordance with such nomination contained in the power of attorney and upon notice of such appointment as required by statute.
  Authority: 58 O.S. § 1074.
  Comment 1: Notwithstanding the foregoing, an instrument executed by an attorney in fact that has been recorded for at least five (5) years is valid even though no power of attorney was recorded in the office of the county clerk of the county in which the property is located, provided no conservator or guardian for the principal in the power of attorney has been appointed on or before the date of such instrument. See 16 O.S. 27a.
  Comment 2: The form of the notice of the appointment referenced above and to whom such notice must be given is not specified in the statutes.
  Comment 3: The death, disability or incapacity of a principal who has previously executed a written power of attorney, whether durable or otherwise, does not revoke or terminate the agency as to the attorney-in-fact who, without actual knowledge of the death, disability or incapacity of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and successors in interest, 58 O.S. § 1075.
  A power of attorney executed in another state shall be considered valid for purposes of the Uniform Durable Power of Attorney Act if the power of attorney and the execution of the power of attorney substantially comply with the requirements of the Uniform Durable Power of Attorney Act (58 O.S. §§ 1071-1077) or the Uniform Statutory Power of Attorney Act (15 O.S. §§ 1001-1020).

The 1993 Report of the Title Examination Standards Committee recommended revising this standard to reflect the legislature's amendment of relevant statutes. The recommendation included, as a consequence of the 1993 amendment to 58 O.S. § 1071, deleting the former Caveat regarding conveyances and encumbrances of homestead interests. The Committee's 1993 proposal also added a Comment regarding the effect of a revision of 58 O.S. § 1075, 64 O.B.J. 3245, 3250 (10/30/93). The Real Property Section approved the amended standard on November 4, 1993, and the House of Delegates adopted it on November 5, 1993, 64 O.B.J. 3409 (11/13/93). The 1994 Report of the Title Examination standards Committee recommended amending this standard to reflect various revisions of the Durable Power of Attorney Act. 65 O.B.A.J. 3334 (10/22/94). The Committee's recommendation was approved by the Real Property Section on November 17, 1994, and adopted by the House of Delegates on November 18, 1994.

The 1997 Report of the Title Examination Standards Committee proposed adding subsection A.3 and supporting authority. 68 O.B.J. 3297 - 98 (10/18/97). The Real Property Law Section approved the proposal, November 6, 1997 and the House of Delegates adopted the amendment, November 7, 1997. 68 O.B.J. 3707 (11/15/97).

The 2000 Report of the Title Examination Standards Committee proposed amendments that brought the standard into compliance with various legislative acts concerning attorneys-in-fact, including the Uniform Statutory Power of Attorney Act. 71 O.B.J. 2629 (10/14/00). The Real Property Law Section approved the proposal, November 16, 2000 and the House of Delegates adopted the amendment, November 17, 2000. 71 O.B.J. 3136 (12/9/00).

The 2013 Report of the Title Examination Standards Committee proposed amending this Standard to reflect that a power of attorney terminates upon the appointment of a guardian or custodian for the attorney in fact’s ward. The Real Property Section approved the proposal on November 14, 2013 and the House of Delegates adopted the amendment on November 15, 2013.

The 2015 Title Examination Standards Sub-Committee proposed amending this Standard to to add a new Standard 6.7 D., and to amend Standard 6.7 C. and E. to reflect changes in the statute to which the Standard applies. The Real Property Section approved the proposal on November 5, 2015 and the House of Delegates adopted the amendment on November 6, 2015. (superseded document available)