Durable powers of attorney are those that persist even if the principal becomes incapacitated. Several Ohio statutes address durable powers of attorney specifically, especially when such powers are used for health care purposes. Powers of attorney are important legal documents, so always consult with an attorney if you need legal advice about them.
Unlike some states, Ohio law does not presume that all powers of attorney are durable. The document must contains specific language that makes it clear that the attorney-in-fact, the person granted the power of attorney, can continue to act even if the principal becomes disabled. Ohio Revised Code section 1337.09(A) states that a durable power of attorney can be created if the document states that it will not be affected "by disability or lapse of time," or words similar to that effect.
A springing power of attorney is one that takes effect upon a specified condition or event. For example, a principal who wants to ensure someone takes over his financial responsibilities if he ever becomes sick or otherwise incapacitated can use a springing power of attorney. This takes effect only if the principal becomes incapacitated, not before. Ohio Revised Code section 1337.09(B) allows for springing durable powers of attorney that can take effect at the moment of incapacity or at any time thereafter.
A durable power of attorney allows the attorney-in-fact to act when the principal is disabled, but it terminates as soon as the principal dies. However, Ohio Revised Code section 1337.09(D) allows a principal to use a durable power of attorney to nominate the attorney-in-fact, or anyone else, as a guardian. A guardian is a court appointed and approved person who is responsible for overseeing the principal's person or estate, and who can also care for the principal's minor children. While the power of attorney can nominate a guardian, it is up to the court to name the guardian.
Durabe Power of Attorney for Health Care
Ohio law also addresses the use of durable powers of attorney for health care. These are specific kinds of powers of attorney that allow an attorney-in-fact the right to make health care decisions on the principal's behalf when the principal is too ill to make them himself. Ohio Revised Code section 137.11 et. seq. sets out the special requirements for these documents, which requires, in part, that a durable health care power of attorney must be signed by the principal in the presence of two adult witnesses or notarized.
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