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

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