Ohio new Uniform Power of Attorney
By: Peter R. Certo, Jr., Probate and Estate Planning Attorney
Ohio has a new Power of Attorney statute and form that went into effect March 22, 2012. The law is found at ORC 1337.21 et seq. This new “uniform” act was meant to simplify Powers of Attorney and eliminate all the different forms created over the years. It certainly has simplified the form and will eliminate all the different variations of these documents. The problem is that it may create problems. Ohio’s Power of Attorney form is a bit too simple and too vague.
Past forms created by attorneys tended to be very specific and detail oriented. The reason for the specificity and detail was that many businesses, financial institutions, corporations, title companies, and the like, would not accept a Power of Attorney unless the powers were spelled out. It also served to fully explain to the person using the Power of Attorney exactly what they were allowed to do. This new form does not provide that detail. In fact, the actual granting of the authority is contained in one sentence and then a check list of thirteen (13) items. For example, this form can allow powers to be exercised, by checking a box, for “Real Estate” or “Banks and Other Financial Institutions”, but that’s all it says. In order to determine the exact powers which are granted, or not granted, you need to look in the statute itself. Most individuals will not do so.
This new statutory form also enables the person signing the form the option to nominate someone as their legal guardian if at some future point a guardianship is necessary.
It is also interesting to note that although the statute says “Power of Attorney”, it does not grant a “Power of Attorney”, and the person receiving the Power of Attorney does not act as Power of Attorney. This law is based on the legal relationship of principal and agent. This document appoints someone as your “Agent”. So when one acts or signs for the principal, you do not say, or sign, as Power of Attorney, you do so as “Agent” for that principal. The acronym “POA” no longer exists.
The best part of the new form is that it prevents the Agent from diverting your assets from your estate without additional specific written authority. The agent does not have the authority to make gifts, change or make payable on death accounts, change beneficiaries on life insurance policies or retirement accounts and the like. In the past these powers were part of the Power of Attorney and gave the Power of Attorney free access to deplete the principal’s assets and completely change the way property would pass at death.
There is a saying that the granting of a Power of Attorney is like giving a license to steal. Just grabbing an internet form Power of Attorney and signing it to “save money” is not a good idea. Anyone wishing to grant a Power of Attorney needs to have a long talk with their attorney about what powers should, and should not, be granted and all the possible ramifications.