What is a Power of Attorney (POA)?

A power of attorney in Ohio is a legal document in which one person (the principal) gives another (the “agent” or “attorney-in-fact”) the right to act and make decisions on their behalf. These decisions can include but are not limited to, healthcare, finances, signing legal documents, and asset management.

A POA in Ohio can also authorize an agent to pay bills, file taxes, and sell or rent real estate. Thus, a POA can be used for all these decisions generally or may be limited to decisions pertaining to one particular matter.

The Ohio Revised Code sets out requirements for the principal and agent involved in creating a POA. In Ohio, a power of attorney can be temporary or permanent, depending on the type of POA. Some POAs terminate automatically due to lapse of time or the principal becoming incapacitated (loses the ability to make decisions for themselves thereby no longer actively consenting to the POA).

What Types of Power of Attorney are available In Ohio?

Ohio State law provides for two main types of power of attorney, amongst others. These include:

• Statutory/General Financial Power of Attorney
• HealthCare power of attorney

A statutory/general POA, also called a financial POA, authorizes the agent to make financial decisions on the principal’s behalf. In contrast, the healthcare POA, as its name implies, authorizes the attorney-in-fact (agent) to make healthcare decisions on the principal’s behalf. By law, both POAs require separate forms. Here are more details on the subjects.

• Statutory/General Financial Power of Attorney: This POA grants an agent the authority to make financial, business, and real estate decisions. Ohio State makes provision for such a form in the Statutory Form Power of Attorney set out in §1337.60 of the Ohio Revised Code. The exact nature of the matters can be specified in the POA form. It becomes a limited financial power of attorney when the principal specifies such in the POA form.
• Health Care Power of Attorney: This type of power of attorney, sometimes called an Ohio Medical Power of Attorney, gives an individual (known in this instance as the “attorney-in-fact”) the authority to make healthcare decisions on the principal’s behalf. By its nature, a healthcare POA is durable as it is effective only when the principal becomes incapacitated. Nonetheless, the authority of the attorney-in-fact can still be limited to specific decisions, such as a particular surgery. As mentioned earlier this kind of POA is durable by nature and will not expire unless so specified in the POA by the principal. Ohio Legislature does not provide a specific form for a healthcare POA. Rather, §1337.17 of the Ohio Revised Code (ORC) mentions a notice that must be included in every drafted healthcare POA form. Further details on a healthcare POA in Ohio can be found in §1337.12-13 of the (ORC) and are mentioned below.

Other types of powers of attorney recognized in Ohio are:

• Springing Power of Attorney: This type of POA comes into effect after a specific event has occurred. A healthcare POA is an example of a springing POA. The drafters of this type of POA must carefully state the triggering event in detail and add any other necessary restrictions and requirements.
• Limited Power of Attorney: This type of POA is created for a specific purpose and remains limited to that purpose only. It ceases to be effective once that specific purpose is achieved. For example, a POA for the sale of a specific property or the management of the principal’s assets while on vacation
• Durable Power of Attorney: A Durable Power of Attorney in Ohio is any POA that remains in effect even after the principal becomes incapacitated. Unless otherwise specified, the state of Ohio will not recognize a POA as durable.
• Non-Durable Power of Attorney: A more regular type of a POA, the non-durable POA ceases to be effective upon the principal’s incapacitation.

Is Power of Attorney Public Record in Ohio?

A power of attorney is not a public record in Ohio. However, it can be recorded at a local County Recorder’s office if desired, making it a public record. Further, where a POA is used in a real estate transaction in Ohio, the document has to be recorded and notarized. Although filing a POA with a local county recorder is not necessary in Ohio State law, parties are usually advised to do so to support the document’s validity.

How To Get Power of Attorney in Ohio?

When getting a power of attorney in Ohio, an individual must first consider the legal requirements set out in Title XIII of the Ohio Revised Code (ORC).

• The principal must be 18 years or older
• The principal must be of sound mind (meaning they understand the consequences and purposes of the POA)
• The principal must go into the POA of their own accord/free will
• The POA must be signed, witnessed to, and notarized

In addition to the above requirements, there are specific steps to follow in getting a POA in Ohio. These steps are as follows:

Step 1. Determine the type of Power of Attorney to Get

There are numerous types of POAs a principal can get. The purpose or reason for the POA will determine the type of POA to be drafted. Whether it is for health care decisions such as end-of-life care, handling a particular matter while the principal is temporarily indisposed, or complete financial control over the principal’s assets, a POA can be drafted to deal with different circumstances.

The principal must be careful to get the POA that is suited to their needs and follow any legal requirements for their chosen POA.

Step 2. Choose the Agent

When deciding on an agent, the principal must look for persons who are trustworthy and capable of handling the allotted tasks. In some cases, this person is their child or spouse. A principal can also consider whether they will have multiple agents or one. Whoever is chosen as the agent must be someone the principal trusts inexplicably to make the best decisions on their behalf.

Regarding a healthcare POA, §1337.12 of the Ohio Revised Code states that The attorney cannot be the principal’s doctor or healthcare provider, nor can they be an administrator in the facility where the principal is receiving care. However, these facts will not preclude the principal from choosing such persons as an attorney-in-fact, if the individuals are related to the principal by blood, marriage, or adoption and if they are of the same religious order.

Step 3. Ascertain the Scope of the Agent’s Authority

A principal must also carefully consider the scope of the agent’s authority. The POA should spell out the extent of the agent’s responsibility, especially if it is a durable POA. For example, if a healthcare POA is created for a major surgery that the principal may not survive, the document must state clearly if and when the agent can make an end-of-life decision. Alternatively, if a financial POA is for tax purposes, the type of tax falling under the agent’s purview should be clearly stated as well.

Step 4. Draft or Complete a POA form

After deciding on the POA and agent, a principal must draft or complete the necessary form. In Ohio, only the statutory form of POA is available in the Ohio Revised Code (state law). A principal may use the statutory form or draft their own POA if it complies with the state’s law, following the guidelines in the §§1337.21-1337.64 of the Ohio Revised Code; Uniform Power of Attorney Act (UPAA). A good example is the healthcare POA, which must be drafted with an official notice in §1337.17 of the ORC.

Step 5. Print and sign the POA form

After filling out the form, the principal must sign the form in the presence of a notary public or two credible witnesses.

Step 6. Retain and distribute copies of the POA

It is important to make and keep physical and digital copies of the signed and notarized POA. A copy should also be given to the agent in the event of a transaction in which the POA is needed. For example, a real estate transaction over which the agent has been given a POA. In the case of a healthcare POA, a copy of the document should be given to the principal’s doctor or relevant healthcare provider. The principal may also share the document with their spouse and children.

Step 7. Agents Certification Form (Optional)

In Ohio, after a POA is printed and signed, the agent has the option of filling out an Agent’s Certification Form to further attest to its validity and certify that they have been given authority as an agent in the subject POA.

Step 8. Update as Circumstances Change

The principal must remember to update the POA should circumstances change that affect the POA. For example, adding another agent or limiting the scope of an agent’s authority.

It is important to note that creating a POA for real estate dealings must be filed at the local county recorder’s office.

Furthermore, it is not compulsory to consult an attorney when creating a POA. However, individuals seeking to create a POA for a complex circumstance are advised to enlist the help of an attorney. In addition, the requirements for certain POAs can be arduous, and consulting an attorney would make the process easier while ensuring all legal requirements are complied with.

What are the Signing Requirements for a Power of Attorney in Ohio?

Where the signing requirements of a POA are not complied with, the document will be invalid. Ohio state legislation gives general signing requirements for a power of attorney.

• The document must be signed by the principal
• Must be signed in the presence of two witnesses or a notary public
• Must be notarized
• Witnesses must be disinterested parties. Therefore, they cannot be the agent, or family member either by blood, marriage, or adoption of the principal.

It is important to note that when drafting a healthcare POA, the document must contain a specific notice provided by §1337.17 of the Ohio Revision Code. This notice must be included in the POA for it to be valid.

How Much Does It Cost to Get a Power of Attorney in Ohio?

The cost of getting a power of attorney in Ohio can vary depending on the process that is followed, the type of POA, and the complexity of the principal’s circumstances. Nonetheless, these are the regular costs of getting a POA.

Attorney Fees: These are the most significant costs in creating a POA. Attorney fees can vary depending on the experience of the attorney and the complexity of the POA, ranging between $200 and $600.

Notarization Fees: The Notary Public Modernization Act states that a notary public may charge a fee of $5 for every in-person notarial act and, $25 for every online notarial act. The fee is per the notarial act and not per signature.

In addition to the regular costs, here are some costs that may also apply.

County Recorders Fees: If the POA needs to be recorded, the county recorder will charge $34 for the first two pages of the document and, $8 for each subsequent page. However, the state of the document may cause the principal to incur additional costs. More details can be found at §317.32. of the Ohio Revised Code.

Cost of Alteration: The cost of alteration comes in the form of attorney fees (where an attorney is involved) and filing fees where applicable. These costs will be significantly lower than drafting a new power of attorney and should be taken into consideration.

If a principal is seeking to cut the costs of creating a POA in Ohio, there are free forms available online. However, individuals must exercise caution when using these forms.

Is it Necessary to Hire a Lawyer to Draft a POA in Ohio?

No, it is not necessary to hire a lawyer to draft a POA in Ohio. However, individuals are advised to consult an attorney throughout the process of creating a POA. If the circumstances surrounding the POA are complex, then hiring a lawyer will help ensure that all the needs of the principal are met and the complex circumstances are handled appropriately.

Further, hiring an attorney will ensure complete legal compliance. The principal can also easily receive relevant information they might otherwise struggle to obtain on their own.

Can I Revoke a Power of Attorney in Ohio?

Yes, a principal can revoke a power of attorney in Ohio. The steps for revocation are as follows:

• The principal must give written notice of revocation to the agent or attorney in fact,
• The principal must complete a power of attorney revocation form,
• The document must be notarized,
• copies of the form must be given to the agent or attorney, in fact, and any other relevant party.

These steps are set out in §§3109.59-60 of the Ohio Revised Code

How long does a Power of Attorney last in Ohio?

In Ohio, all powers of attorney are deemed durable unless otherwise specified in the form. This means that, as opposed to the regular practice of invalidity upon incapacitation, the durable POA will continue even after the principal becomes incapacitated or dies. Where the principal does not desire a durable POA, they must state so in the form. Once the allotted time for the POA lapses, it will cease to be valid. Therefore, a power of attorney can last as long as specified in the POA form.

Some types of powers of attorney, such as limited POAs, which exist to carry out a specific task, will expire once the task is completed.

Additionally, a durable can end when the agent or attorney-in-fact is no longer available and if the court invalidates the document. A court can invalidate a power of attorney if the mental capacity of the principal is proved to have been absent when the document was made.

Can I Appoint Multiple Agents under Power of Attorney in Ohio?

Yes, a principal can appoint multiple agents under a power of attorney in Ohio.

§1337.60 of the Ohio Revised Code allows for a principal to appoint multiple agents or co-agents under the special instruction provisions. Co-agents are not required to act together unless the principal includes that in their special instruction. Also, if the initial agents are unable or unwilling to fulfill their responsibilities, the successor agents will take over. Nonetheless, co-agents can act jointly or separately as specified by the principal in the POA form.

What Happens if I Do Not have a Power of Attorney and Become Incapacitated in Ohio?

In the absence of a power of attorney when an individual becomes incapacitated, the state of Ohio becomes the guardian of the incapacitated individual until a guardian is appointed by the court. The members of their family and sometimes close friends can apply to the court to appoint a guardian to make decisions regarding the incapacitated individual.

Guardianship can be appointed over the incapacitated individual and their estate, only the individual, only the estate, and lastly, only a part of the estate or a specific decision regarding the incapacitated person.

The filing for guardianship in Ohio should be in a court with jurisdiction over the incapacitated individual and their property. Note that the court cannot be forced to appoint a guardian and will only appoint one when it is proven to be in the best interest of the incapacitated individual.

Does an Ohio Power of Attorney Need to be Notarized?

No, an Ohio power of attorney generally does not have to be notarized. The law only states that the principal’s signature needs to be acknowledged in the presence of a notary public or two adult witnesses (neutral parties). However, in practice, the validity of the POA will likely be questioned if the document is not notarized. Consequently, it is to the advantage of the principal and agent that the power of attorney is notarized. For POAs used in real estate transactions and for healthcare decisions, notarization is required by financial institutions and hospitals.