An Ohio Power of Attorney is now presumed to be “durable” meaning it survives the incapacity of the principal. In these newly drafted Powers of Attorney, the term “Agent” replaces the term “Attorney in Fact.” Further, an agent’s authority now continues even if a guardian or conservator is appointed for the principal.
It is important that your Power of Attorney is notarized and witnessed by two disinterested witnesses. Although this is not required by law, if the document is notarized the principal’s signature is presumed to be valid, and if the document is witnessed, it may then be used in a state that requires witnesses.
Although the following is technically a valid Power of Attorney: “I hereby grant to my Agent the authority to do or perform all acts that I could do”, it may not be as effective or prudent because Ohio law then gives a broad authority to the agent and imposes provisions that may be inappropriate. The new law contains several “default rules” which means, absent language to the contrary, various provisions apply which may not be advisable. For example,if co-agents are named, each agent may act independently. An agent has a duty to maintain records and may be required to submit an annual accounting. An agent is also entitled to be compensated. These are just a few of the “default” provisions.
Furthermore, the new law allows the agent, if specifically authorized by the principal, to take dramatic actions, such as create, revoke or amend a trust, or to make a gift to the agent, or to change a beneficiary designation.
Under the new law, the agent is required to “preserve the Principal’s estate plan” to the extent known by the agent. The term “estate plan”, however, is not defined. Now, serving as an agent may expose the agent to liability if the principal’s estate plan is altered.
The estate planning practice at Stark & Knoll has carefully crafted new Power of Attorney documents that conform to the new law while keeping your best interests in mind.
Your current Power of Attorney may certainly be valid, but it is advisable to review it with your Stark & Knoll estate planning attorney who will determine how this new law affects you, explain the options now available to you as a Principal and the new obligation imposed upon you as an Agent.
For more information regarding your Power of Attorney, or to create a new Power of Attorney please contact Greg Bean or your Stark & Knoll Attorney at 330-376-3300.