Finance
Instrument: Power of Attorney (POA)
What is it for?
The “power of attorney” (POA) allows an adult (the “principal”) to choose another (the “agent”) to act on the principal’s behalf with regard to the principal’s property or business affairs.
What does it do?
It empowers the agent to be able to make decisions and act with respect to the principal’s property on the principal’s behalf. The agent is granted authority over a broad range of financial matters. Ohio Rev. Code Ann. § 1337.34. However, the POA cannot be used to give the agent authority over health care decisions. Ohio Rev. Code Ann. § 1337.60.
Unless the POA expressly states otherwise, a POA is considered to be “durable,” which means the agent’s authority continues during a period when the principal lacks capacity. Ohio Rev. Code Ann. § 1337.24.
In making decisions for the principal, the agent must act in good faith, only within the scope of the authority granted in the POA, and in accordance with the principal’s known expectations and in the principal’s best interest. Ohio Rev. Code Ann. § 1337.34.
Third parties must generally accept decisions made by the agent as if the principal had made them. They may, however, request the agent for a certification of the POA’s validity. Ohio Rev. Code Ann. §§ 36 & 61.
How does one make it?
A POA generally must be in writing, signed by the principal or in the principal’s conscious presence by another individual at the principal’s direction, and notarized. Ohio Rev. Code Ann. § 1337.25.
When does it come into effect?
A POA can state that the agent’s authority begins either immediately upon execution, at a future date, or upon the occurrence of a future event, such as the principal’s incapacity. Ohio Rev. Code Ann. § 1337.29(A).
If a POA becomes effective upon a future date, occurrence, or event, the principal may designate one or more persons to determine that the future date, occurrence, or event has occurred in writing. Absent a designation of who will determine the principal’s incapacity, this determination may be made by a physician or licensed psychologist who has evaluated the principal. Ohio Rev. Code Ann. § 1337.29(C)(1).
For the purpose of this determination, “incapacity” means the principal is unable to manage their property or business affairs for two main reasons due to an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. Ohio Rev. Code Ann. § 1337.22(E)(1).
How long does it last?
A POA generally lasts until the principal or agent dies; the principal revokes the POA; the POA provides that it terminates upon some future date or event; the purpose of the POA is accomplished; or the agent’s authority is revoked. Ohio Rev. Code Ann. § 1337.24.
How does one end it?
Presumably, the principal may revoke the POA at any time by either destroying the POA and notifying the agent or by another method that communicates the principal’s intent to revoke. Note that executing a subsequent POA does not revoke a prior POA, unless the subsequent POA expressly states that the previous one is revoked. Ohio Rev. Code Ann. § 1337.30.
What does an example look like?
A sample POA form is provided at Ohio Rev. Code Ann. § 1337.60. An optional agent’s certification form is provided at Ohio Rev. Code Ann. § 1337.61.
What else should one know?
Ohio’s POA is based on the Uniform Power of Attorney Act.
Last updated July 2022
Education
No information available at this time.
Health
Instrument: Durable Power of Attorney for Health Care (DPOAHC)
What is it for?
The “durable power of attorney for health care” (DPOAHC) allows an adult (the “principal”) to choose another (the “attorney in fact”) to make medical decisions on their behalf when the principal lacks the capacity to do so. Ohio Rev. Code Ann. § 1337.12(A)(1).
What does it do?
The DPOAHC allows the principal to designate an attorney in fact with the power to make health care decisions on their behalf should the principal be determined to lack the capacity to make informed health care decisions on their own. Ohio Rev. Code Ann. § 1337.12(A)(1). The attorney in fact cannot be an employee or agent of the attending physician of the principal and an employee or agent of any health care facility in which the principal is being treated. Ohio Rev. Code Ann. § 1337.12(A)(2).
Health care decisions that the attorney in fact may make include giving, refusing or withdrawing informed consent for any care, treatment, service, or procedure to maintain, diagnose, or treat the principal’s physical or mental condition or physical or mental health. Ohio Rev. Code Ann. §§ 1337.11(G-H). Generally, an attorney in fact does not have authority to refuse or withdraw informed consent to refuse or withdraw informed consent to life-sustaining treatment, the provision of nutrition, or the termination of a pregnancy, unless certain additional requirements are satisfied. Ohio Rev. Code Ann. §§ 1337.13(B-E).
How does one make it?
A DPOAHC must be in writing, signed by the principal, and include the date of its execution. It must also either be witnessed by either two adult age individuals or notarized. The witnesses or the notary public must certify that the principal’s signature is genuine, that the principal is of “sound mind” and that the principal appears to be making the decision free of duress, fraud or undue influence. Ohio Rev. Code Ann. § 1337.12(A-C).
If witnessed by two adults, the DPOAHC witnesses may not be related to the principal by blood, marriage, or adoption, nor may the witnesses be any person designated as an attorney in fact, the attending physician, or the administrator of a nursing home in which the principal is receiving care. Ohio Rev. Code Ann. § 1337.12(C).
When does it come into effect?
The attorney in fact’s authority comes into effect when the principal’s attending physician determines that the principal has lost the capacity to make informed health care decisions for the principal. Ohio Rev. Code Ann. § 1337.12(A)(1).
How long does it last?
A DPOAHC lasts until either the principal dies, the principal revokes it, or the DPOAHC specifies an expiration date. Ohio Rev. Code Ann. § 1337.12(A)(3).
How does one end it?
A principal who creates a valid DPOAHC may revoke that instrument or the designation of the attorney in fact under it. The principal may so revoke at any time and in any manner and is effective upon the time the principal expresses such an intention. Also, unless the DPOAHC specifies otherwise, executing a subsequent DPOAHC revokes a prior DPOAHC. Executing a declaration for mental health treatment, however, does not revoke a prior DPOAHC. Ohio Rev. Code Ann. § 1337.14.
What does an example look like?
A sample DPOAHC form is provided at Ohio Rev. Code Ann. § 1337.17.
What else should one know?
No health services entity may condition access to benefits, care, or services, including admission to a health care facility, on the creation or revocation of a DPOAHC. Ohio Rev. Code Ann. § 1337.16(A).
Last updated July 2022
General
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