Power Of Attorney
Simply put, a power of attorney (POA) is a legal document where you are authorizing someone to act in your place. The person giving the authority to another is called the “principal.” The person you name who is receiving the power to act for another is commonly referred to as your “agent” or “attorney-in-fact.” Keep in mind that even though they are called your attorney-in-fact, the person named does not need to be a lawyer.
Legacy Law Firm, LLC can customize your powers of attorney to reflect your wishes, in conjunction with your will and other estate planning documents.
What Can A Power Of Attorney Do?
Here in Ohio, we separate powers of attorney into two categories: a financial power of attorney and a health care power of attorney.
A financial POA generally deals with actions related to financial transactions, contracts and real estate. Just like it sounds, a health care POA deals with medical decisions and living arrangements. When executing a POA, you have the ability to grant one that is limited or one that is general. This is where you specify if you want your agent to have all the general powers set forth under the Ohio Revised Code, or if you want to place limitations on the authority granted. For example, you may want your agent under a financial POA to be able to write checks for you, but not to deal with your real estate. A properly completed financial POA can accomplish this.
What Is A Durable Power Of Attorney?
When a POA is durable it means that it remains in effect in the event of your mental incapacity. In order to complete a POA, the principal must have legal capacity. Generally speaking, that means that he or she must have the mental wherewithal to understand what is happening, what he or she is doing, and the legal effect of signing a POA. If you, the principal, are declared mentally incompetent in the future, the authority granted under a POA may or may not continue to be valid depending on whether or not the POA is “durable.”
How Can You Make Sure A Power Of Attorney Is Accepted?
One of the nuances of a power of attorney is that there is no formal requirement for a bank or other entity to honor it. When Ohio adopted the Uniform Power of Attorney Act in 2012, the provision imposing financial penalties for refusing to honor an otherwise valid POA was removed. As such, the place where you are trying to use the power of attorney can simply state that they do not like it and refuse to honor it.
That being said, banks are not there to give you a hard time. They are often concerned about liability on their part in honoring a POA. Most commonly, we see problems arise when a power of attorney:
- Is too vague as to the authority being granted
- Is too old
- Lacks or contains a minimal waiver of liability provision
In short, you may want to turn in your power of attorney to the place(s) you would want to have them used ahead of time. That way the bank or other entity can review the document and let you know if there are any concerns before the time for use is needed.
What Is A Living Will?
A living will is a legal document where you specify your wishes in regards to artificial life support. Prior to August 2021, you could also state your wishes as they relate to organ donation. As the law has now changed, those provisions will no longer be honored.
Living wills in Ohio are only effective if you are terminally ill or permanently unconscious. You can specify certain wishes regarding life support, such as no feeding tubes. Most commonly, a living will states that life support is not to be administered if you are terminally ill or permanently unconscious. Keep in mind that this supersedes any authority granted under a health care power of attorney. That means that your agents will not have the ability to be involved in decisions related to artificial life support even if you meant for them to do so.
A review of these documents by a qualified estate planner can be crucial in ensuring that your wishes are followed, and those persons you wish to act on your behalf will be able to speak for you.
Have questions? Call us! 330-529-7070