Understanding the power of attorney requirements in Ohio can be of value in various situations. Creating a power of attorney in Ohio can be a matter of convenience, such as when you can't be present to sign legal documents. It can also be a matter of necessity, to enable someone you trust to handle your finances or make decisions about your medical treatment if you become incapacitated.
Understanding Powers of Attorney
A power of attorney, or POA, is a legal document that allows one person, called the "agent," to represent another person, called the "principal," in various types of financial and medical matters. Under Ohio law, the agent in a healthcare POA is called the "attorney in fact."
A financial POA that gives the agent broad powers to represent the principal in just about any matter is called a "general" POA. One that limits the agent's authority in some way, such as to a single transaction, a certain type of transaction, or to a limited amount of time, is called a "limited" or "special" POA.
Traditionally, a POA ended if the principal became mentally incapacitated, and was effective as soon as it was signed. Under Ohio law, you can have a POA that continues in effect after incapacity (called a "durable" POA), or one that goes into effect only if the principal becomes incapacitated (called a "springing" POA).
A healthcare POA gives the attorney, in fact, authority to make decisions about the principal's medical care in the event the principal become incapacitated and can't make or communicate decisions. A healthcare POA is both a springing and a durable POA.
The power of attorney requirements in Ohio are found in Title XIII of the Ohio Revised Code (ORC). Financial POAs are covered by the Uniform Power of Attorney Act, beginning with Section 1337.21, ORC. Provision for healthcare POAs begins with Section 1337.11. Generally, any mentally competent person who is at least 18 years of age may create a POA.
Ohio Financial Power of Attorney
A simple way of obtaining a power of attorney in Ohio for financial matters is to use the Statutory Form Power of Attorney that was created by the Ohio legislature. This form may be found in Section 1337.60, ORC.
The form lists various types of financial transactions, each of which is explained in detail in the Ohio Revised Code. To give your agent the power to engage in all matters, you can initial the line in front of the phrase "All Preceding Subjects." Otherwise, you need to initial the line before each type of power you want your agent to have.
The form states that it becomes effective immediately unless you state otherwise in the section titled "SPECIAL INSTRUCTIONS." For example, this could be done by inserting the following language: "This power of attorney shall become effective upon the principal's incapacity, as certified in writing by my attending physician who has examined me."
Incapacity is defined as the inability to manage property or business affairs because the principal has "an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance"; or "is missing, detained, including incarcerated in a penal system, or outside the United States and unable to return.""
You may state in the POA how incapacity will be determined, as in the example above. If not stated, or if the person designated can't or refuses to make the decision, incapacity due to impairment will be determined by a physician or licensed psychologist who has examined the principal. Incapacity due to unavailability will be determined by a lawyer, judge, or "an appropriate government official."
Ohio Healthcare Power of Attorney
The Ohio legislature has not approved a form for a healthcare POA but has established some requirements. It must be dated, signed by the principal at the end of the document, either signed by two witnesses or notarized, and include a specified statement regarding who can be an attorney in fact. If notarized, there is a required certification that the principal appears to be of sound mind and not under duress, fraud, or undue influence.
Further details can be found in Section 1337.12, ORC. Section 1337.13 goes to great length to set forth what an attorney, in fact, may, and may not, do; as well as certain procedures that must be followed in various circumstances.
Ohio law allows the creation and sale or distribution of printed healthcare POA forms, provided they include a specific and rather lengthy, notice that is found in Section 1337.17, ORC.
Since Ohio has an approved financial power of attorney form, that's the simpler one to complete. Be sure to allow extra time to create the healthcare POA document, to be sure that it meets the needs of you or your loved one.