What Is a Power of Attorney?
A power of attorney is a legal document that allows a person (the principal) to give another person (the agent or attorney in fact) the legal authority to make decisions on behalf of the principal. The agent's actions under a power of attorney are binding on the principal.
In Ohio, there are two main powers of attorney: the financial power of attorney and the durable power of attorney for health care. The financial power of attorney gives an agent the authority to manage the principal's property, finances, business matters, and personal matters.
The durable power of attorney for health care is a power of attorney that exclusively deals with the principal's health care.
What Is a Durable Power of Attorney for Health Care?
A durable power of attorney for health care allows a principal to name an agent to make health care decisions for the principal when the principal does not have the capacity to make informed health care decisions. If you have a durable power of attorney for health care, your attending physician will determine when you have lost capacity.
In Ohio, an agent for a durable power of attorney for health care is called an attorney in fact. Your attorney in fact will be able to make health care decisions for you to the same extent you can make them for yourself unless you limit any of their decision-making authority.
An attorney in fact will not be able to refuse or withdraw consent to
- Comfort care
- Treatment that would terminate a pregnancy unless the pregnancy is not viable or the pregnancy or health care would endanger the principal's life.
Your attorney in fact also may obtain information about your health, including medical records, to help them make informed decisions.
How To Get an Ohio POA
If you want a valid power of attorney in Ohio, you can hire an attorney or find an easy-to-use form like the forms we offer. Whether you hire an attorney or do it yourself, you should follow these steps:
1. Decide why you want a power of attorney
You can give broad or limited authority under a power of attorney. These are the kinds of questions you should ask yourself when deciding what powers to give your agent or attorney in fact:
- Do you only want someone to care for you and your finances when you cannot do so?
- Do you want someone to help you manage your finances or property when you are healthy?
- Are you busy or traveling and want someone to handle a specific transaction for you?
- Do you want life-sustaining treatment to continue if you have a terminal condition or are in a permanent state of unconsciousness?
After you think about these questions, you can fill out your form to give your agents the authority you want them to have.
2. Choose your agents
When choosing an agent or attorney in fact, you should pick people you trust. You can choose different people to be your attorney in fact for health care and your agent for any financial powers of attorney you have.
For your health care attorney in fact, choose someone who knows you well and understands your health care needs and wishes.
The following people cannot be your attorney in fact for health care:
- Your attending physician
- An administrator at a nursing home where you are receiving care
- An employee of the attending physician or health care facility where you are being treated unless they are your family member
An agent for a financial power of attorney should be someone that makes smart decisions about money and property. You can have multiple powers of attorney if you want to give different agents different powers. However, be careful not to have too many powers of attorney to keep track of.
You can also name two or more people as co-agents under a financial power of attorney. Each co-agent will be able to act independently unless your power of attorney says they must act together. In most cases, you should avoid co-agents to prevent confusion and disagreement.
Finally, you should name one or more successor agents and health care attorneys in fact to take over if your original agent is unable or unwilling to act.
3. Get your form and fill it out
Find the right form for you. We offer easy-to-use forms that walk you through the process and have been reviewed by lawyers.
Ohio's statutes also contain a financial power of attorney form. But, any form that substantially complies with the statutory form's format is a valid power of attorney if appropriately signed.
Ohio's statutes do not contain a durable power of attorney for health care form. However, a health care power of attorney must contain the "Notice to Adult Executing this Document" found in Ohio Revised Code 1337.17.
Suppose you want your attorney in fact to be able to refuse or withdraw consent for nutrition or hydration when you are permanently unconscious. In that case, your form must include an explicit authorization to refuse or withdraw consent in capital letters. You also must sign or initial next to or underneath the authorization.
4. Sign your form with the correct number of witnesses
If you fill out your form without signing it correctly, it will not be a valid power of attorney. For a financial power of attorney, you need to sign it before a notary public.
Durable powers of attorneys for health care have more complicated signature requirements. You must sign and date your durable power of attorney for health care at the end of the document. You can either have two adult witnesses or a notary public sign it.
If you use two witnesses, they must be present when you sign your durable power of attorney for health care. The witnesses cannot be:
- Someone related to you by blood, marriage, or adoption
- Your attorney in fact or alternate attorney in fact
- Your attending physician
- The administrator of a nursing home where you are receiving care
Instead of witnesses, you can acknowledge your durable power of attorney for health care before a notary public. Whether you use a notary public or two witnesses, their signatures should include a statement that you appear "to be of sound mind and not under or subject to duress, fraud, or undue influence."
5. Give your form to everyone who needs it
Having a power of attorney is useless if the right people do not have it. You should give a copy of each power of attorney to the agent or attorney in fact. You also can give copies of your financial power of attorney to businesses or people that your agent will deal with.
Suppose your agent has the authority to conduct a real estate transaction for you. In that case, you will need to file the POA in the county recorder's office where the property is located.
Finally, you should give copies of your durable health care POA to your primary physician and health care facilities where you will receive treatment.
