In the state of Ohio, durable power of attorney (POA) means that the agent continues to have authority to act after the principal has become incapacitated. The term “incapacitated” means that the principal is mentally incompetent or cannot make informed decisions on their own.
A person can revoke a durable power of attorney by creating and signing a notice of revocation or destroying all existing copies of the power of attorney form.
Revocation of a Power of Attorney
The execution of a new power of attorney document does not revoke a prior power of attorney unless the subsequent document provides that the previous power of attorney is revoked or all other powers of attorney are revoked. It is relatively easy to revoke a power of attorney in Ohio.
If a person has filed a power of attorney form with their county clerk, they will need to file the notice of revocation with the same office.
The person who can revoke a power of attorney is the principal, the person who gave another party the power to act. In Ohio, a power of attorney is presumed to be durable unless the document expressly provides that the power of attorney is terminated by the incapacity of the principal. An agent is always required to act in good faith on behalf of the principal.
Preparing a Notice of the Revocation
A principal may revoke a power of attorney document if they are of sound mind and are physically able to revoke the document. If any party challenges the revocation, the court determines whether the principal understood the consequences if they signed the revocation document.
There is a fee to file a notice of revocation, which varies by county. In Hamilton County, the fee is $34 for the first two pages and $8 for each additional page.
Health Care Decisions in Ohio
A durable power of attorney for health care is defined as the power to make decisions for the principal about the principal’s health care. An agent who makes such decisions is called the attorney in fact.
An attorney in fact can make health care decisions for the principal at any time that the attending physician determines that the principal has lost the capacity to make informed health care decisions for themselves.
The durable power of attorney for health care authorizes the attorney in fact to obtain information from the hospital or healthcare provider regarding the principal’s health, including protected health information. The attending physician and health care personnel acting under the attending physician are required to provide information to the attorney in fact.
No Expiry Date
A power of attorney document has no expiration date under Ohio law. A principal can cause a power of attorney to expire by specifying a date upon which the durable power of attorney for health care will generally expire.
If a principal specifies an expiration date and then lacks the capacity to make informed health care decisions for themselves on that date, the document and power it grants the attorney in fact will continue to remain in effect. The document will continue to be in effect until the principal regains the capacity to make informed health care decisions for themselves.
Withdrawal of Informed Consent
An attorney in fact does not have authority to refuse or withdraw informed consent to life-sustaining treatment, unless the principal is in a terminal condition or in a permanently unconscious state and either these conditions applies:
- Principal is suffering from an irreversible, incurable and untreatable condition caused by disease, illness or injury from which there can be no recovery, and their death is likely to occur within a relatively short time if life-sustaining treatment is not administered and their attending physician additionally determines, to a reasonable degree of medical certainty and in accordance with reasonable medical standards, that there is no reasonable possibility they will regain the capacity to make informed health care decisions for themselves.
- Principal is in a state of permanent unconsciousness that is characterized by being irreversibly unaware of themselves and their environment and by a total loss of cerebral cortical functioning, resulting in having no capacity to experience pain or suffering, and their attending physician additionally determines, to a reasonable degree of medical certainty and in accordance with reasonable medical standards, there is no reasonable possibility they will regain the capacity to make informed health care decisions for themselves.
Further, an attorney in fact does not have authority to refuse or withdraw informed consent to health care necessary to provide comfort care.
Revocation of Power of Attorney for Healthcare
A revocation for this type of power of attorney is effective when the principal expresses an intention to revoke. The Ohio statute does not provide that the principal must express their intention to revoke in writing.
If the principal made their attending physician aware of the durable power of attorney for health care, the revocation is effective upon the principal’s communication of the revocation to the attending physician, a witness to the revocation, or other health care personnel to whom the revocation is communicated by such a witness.
The attending physician and other health care personnel informed of the revocation by an alleged witness, a person who states they witnessed the principal's revocation, may rely on the information and act in accordance with it. The attending physician and other health care personnel acting under that physician’s direction shall make the revocation part of the principal’s medical record.
Further, unless the initial durable power of attorney provides otherwise, a valid durable power of attorney for health care revokes a prior, valid durable power of attorney for health care.
Authority Regarding Real Estate Transactions
A revocation of the power of attorney for the conveyance, mortgage or lease of any interest in real estate should be signed, acknowledged and certified, similar to the requirements for the creation of a power of attorney in Section 5301.01 of the Ohio Revised Code.
A notary's acknowledgment verifies the person signing the document is the person named in the document. This section of the statute relates to the acknowledgment of an interest in real estate such as a deed.
An acknowledgment must be before a judge, clerk of court of record in Ohio, county auditor, county engineer, a notary public or a mayor. This individual will certify the acknowledgment and subscribe the official’s name to the certificate of acknowledgment.
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.