How to Get a Durable Power of Attorney in Ohio

What is a durable power of attorney?

A durable power of attorney is a signed, legal document that enables an individual (called the “principal”) to let someone else (called the “agent” or “attorney-in-fact”) make decisions about legal, financial, or health care matters for them. What sets a durable power of attorney apart from other types of power of attorney is that it continues even in the event of the principal’s incapacity. Ohio Revised Code, Chapter 1337, outlines definitions and requirements of the power of attorney in the state.

A durable power of attorney form plays a significant role in estate planning because it eases confusion and stress if you are one day unable to make decisions due to a medical emergency or a decline in mental health. The benefits of this attorney document are two-fold: Your family can avoid probate court and navigate tough scenarios knowing that there is a designated decision-maker, and you can be confident that there is someone advocating for you on legal, medical, or financial matters.

It is important to note that for healthcare-related matters, Ohioans are legally required to have a separate healthcare durable power of attorney form that specifically gives an agent the power to make healthcare decisions for the principal on their behalf. 

Types of power of attorney

There are six types of Ohio durable power of attorney:

• General financial power of attorney. The attorney-in-fact has authority to act on behalf of the principal for business and financial purposes, which are typically outlined in the power of attorney form. A general power of attorney can be durable or non-durable.
• Durable power of attorney. A durable power of attorney is like a general power of attorney, except that it stays in effect upon the principal’s incapacity.
• Non-durable power of attorney. A non-durable power of attorney means that an agent’s authority does not continue upon the principal’s incapacity.
• Limited power of attorney. This attorney document grants the agent the power to make business or financial decisions, but the agent's authority only lasts for a specific purpose or time frame. For instance, you might use a limited power of attorney to have your attorney-in-fact perform certain legal business transactions while you’re out of the country for an extended time. Then, once those transactions are complete, the limited power of attorney ceases.
• Springing power of attorney. This type of power of attorney form is only activated when a certain predetermined event—which is outlined in the document—occurs. Common triggering events include the principal’s incapacity.
• Healthcare power of attorney. A type of springing power of attorney, this document takes effect upon the principal’s incapacity and only includes healthcare-related matters. A healthcare durable power of attorney in Ohio does not have an expiration date unless a date is specifically noted in the legal document or the principal passes away or revokes the document.

Requirements for a durable power of attorney in Ohio

An Ohio durable power of attorney can be quite flexible in scope depending on the needs of the principal, but there are some legal requirements that must be met.

Agent eligibility

For a durable financial power of attorney in Ohio, the attorney-in-fact must be a competent adult. The law gets a bit more specific with a healthcare power of attorney, noting that the competent adult cannot be the principal’s physician or the administrator, employee, or attending physician of the healthcare facility where the principal is staying.

Beyond these simple requirements, individuals should choose an agent who is trustworthy, reliable, and organized and whom they know will act in good faith. People often choose from family members or trusted friends for their power of attorney.

Document execution

A durable power of attorney form must be signed by the principal, and, similar to the elements of a legally binding contract, the principal must be of sound mind and voluntarily fill out the form. Additionally, to have a legal document, it must be signed by a notary public.

For a durable power of attorney form, Ohio law considers it effective immediately when signed and notarized unless an event or future date is specifically provided. So, if a principal wants the power of attorney to start at a later date, it is extremely important for them to note the triggering event or the date upon which the document will become effective. 

Specific powers

With both a durable financial power of attorney and a healthcare power of attorney in Ohio, there are some limitations on what the attorney-in-fact can and can’t do. For example, agents cannot transfer assets into or change a trust, make a gift, or create or change a beneficiary designation on behalf of the principal unless these aspects of an agent’s authority are specifically expressed and such powers are initialed by the principal in the Special Instructions section of the attorney form.

How to create a Ohio durable power of attorney

Nominating a power of attorney can be beneficial in so many ways—whether you’re planning for future healthcare decisions or need help with account management at a financial institution while you’re away for an undetermined amount of time. But understanding what should and shouldn’t be included can be nerve-wracking. 

With LegalZoom’s financial power of attorney service, you’ll receive the guidance and document creation assistance you need to have peace of mind for your future. We not only help you fill out an Ohio power of attorney form, but we also provide access to legal counsel to ensure that your document is enforceable and keeps your best interests at heart.

Whether you’re drafting a durable financial power of attorney or durable healthcare power of attorney, these are the general steps involved.

1. Determine the powers to grant

An agent’s authority can be as small as filing your taxes or transferring funds between bank accounts or as large as managing business dealings, selling tangible personal property such as a home, or making healthcare decisions. This is why it’s crucial to consider exactly which powers to grant.

2. Select a trusted agent

In Ohio, individuals can select an agent as well as a successor agent. A successor agent is the person who will take over the power of attorney duties if the primary agent is unwilling or unable to. 

Make sure to choose an agent who has actual knowledge of the granted powers and who you are confident will act on your behalf capably and in good faith. Family members are often a good choice.

3. Draft the document

For a durable financial power of attorney form, Ohio law actually provides a framework that individuals can use, called the statutory form power of attorney. This resource lays out the sections and language that should be included. There is no state resource for a healthcare power of attorney document, so you’ll need to draft one yourself—ideally with the help of a professional who is well-versed in these legal matters.

Another beneficial document is the agent’s certification, an optional form that can be sent to the attorney-in-fact to fill out and get signed by a notary public. The Ohio agent’s certification acts as another layer of proof that their power of attorney role is current and effective. Some financial institutions may ask for this document, in addition to the durable power of attorney form, to ensure the security of their client's bank accounts.

4. Include necessary language

Ohio Revised Code, Section 1337.24 notes that all power of attorney forms, including healthcare power of attorney forms, created in the state are considered durable unless otherwise noted. This means that you don’t need to include this provision in the attorney document.

However, if you’d like to designate certain medical or financial powers under the agent’s authority, make sure to include that language, being as specific as possible to avoid any confusion. For example, you might grant broad authority to make medical decisions or note specific bank accounts that the attorney-in-fact can manage.

5. Sign and notarize

Once your power of attorney form is complete and a legal professional has reviewed it, sign it and get it notarized by a notary public. Additionally, if you’re granting your attorney-in-fact the power to handle leases, purchases, or sales of real property in Ohio, you’ll need to file your durable power of attorney form with the county recorder’s office where the personal property is located.

How and when to revoke a durable power of attorney

Many people think the term “power of attorney” means unlimited and indefinite, but in Ohio and many other states, durable power of attorney is quite simple to revoke. In fact, there are many reasons to revoke power of attorney, such as having an agent (and perhaps even a successor agent) who is unavailable or no longer mentally sound, or the principal simply not wanting to grant that power anymore. 

To revoke a durable power of attorney, Ohio law makes the process simple. While only verbal revocation is necessary—either to the attorney-in-fact in the case of a financial durable power of attorney or to both the attorney-in-fact and the attending physician in the case of a health care durable power of attorney—it’s also a good idea to draft a formal revocation document and get it notarized, then destroy the existing copies of the original power of attorney form. If your agent has the power to manage real property and you’d like to revoke the agent’s authority, you’ll need to file a formal revocation document with the county recorder’s office where you filed the power of attorney form.

Crafting an Ohio durable power of attorney form or a formal power of attorney revocation document can be done on your own, but it’s always a good practice to consult a legal professional to ensure that your paperwork is legally binding and works to your advantage.

FAQs

What is the difference between a regular power of attorney and a durable power of attorney?

A regular power of attorney, also known as a general power of attorney, can be either durable or non-durable. Durable means that the power of attorney continues even upon the principal's incapacity, while non-durable means that it does not continue upon the principal's incapacity. By default, all powers of attorney in Ohio are considered durable unless otherwise noted.

When does a durable power of attorney take effect in Ohio?

In Ohio, a durable power of attorney is effective immediately when it is signed and notarized. If you want the power of attorney to become effective at a later date or when a particular event occurs, this date or triggering event should be stated clearly in the power of attorney form.

Can I have more than one agent in a durable power of attorney in OH?

Yes, you can have two or more agents, called coagents, in a durable power attorney in Ohio. 

Is a durable power of attorney valid after death?

No, a durable power of attorney in Ohio is not valid after the principal’s death or upon revocation.

How do I choose an agent for my durable power of attorney?

Choosing the right person to act as your agent for a durable power of attorney is crucial. Select someone who is reliable, trustworthy, and capable of making difficult decisions for you in good faith. It’s also a good idea to designate an attorney-in-fact with actual knowledge and expertise in a specific area that you’ve chosen, such as personal finance or business operations.