An Ohio durable power of attorney form allows a trusted person to manage financial affairs if the principal experiences mental incapacity. Choosing a spouse or family member as the agent to oversee finances is recommended.
Laws
Ohio power of attorney forms are durable by default, so you don’t need to take any extra steps to ensure your power of attorney will last beyond incapacitation.
- Relevant Laws: Ohio Rev. Code §§ 1337.21-1337.64.
- Presumed Durable: Yes, unless it states that a power of attorney is terminated by the principal’s incapacity (Ohio Rev. Code § 1337.24).
- Signing: Signature required (Ohio Rev. Code § 1337.25).
- Notarization: The principal must sign the form before a notary public or other individual authorized by law to take acknowledgments (Ohio Rev. Code § 1337.25).
- Statutory Form: Yes (Ohio Rev. Code § 1337.60).
Definitions
Durable – “Durable,” with respect to a power of attorney, means not terminated by the principal’s incapacity (§1337.22(B)).
Power of Attorney – “Power of attorney” means a writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term power of attorney is used (§1337.22(G)).
Specific Powers and Limitations
Restrictions on Gifts and Transfers in Ohio
The restrictions on the types of gifts an agent can make and the considerations they must account for can be found under § 1337.58.
Types of Gifts
- Outright Gifts: In Ohio, an agent can make gifts directly to a recipient within the annual exclusion limit set by federal tax law. If the principal is married and the spouse consents, the agent may also make gifts up to double the annual exclusion limit. This is subject to both state and federal tax considerations.
- For the Benefit of Another Person: Gifts made for another’s benefit, such as contributions to a child’s 529 College Savings Plan, must adhere to guidelines for such contributions, which may align with federal limits and considerations for tax-advantaged growth (§ 26 USC 529).
- Gift Splitting: Similar to federal law, Ohio allows for gift splitting where the principal’s spouse can consent to split gifts, thereby increasing the amount that can be gifted without incurring additional taxes (§ 26 USC 2513).
Considerations
- The value of the principal’s property.
- The principal’s foreseeable obligations and maintenance needs.
- Tax minimization strategies, including considerations for inheritance, income, and gift taxes.
- The principal’s past gift-making patterns.
- Eligibility for assistance, programs, or benefits under state regulation.
Agent’s Authority Limitations
An agent must act in good faith, adhere to the terms of the DPOA, operate within their authority, and make decisions based on the principal’s reasonable expectations. If the principal’s expectations are unknown, the agent must act in the principal’s best interest.
Agents are generally restricted from making decisions that primarily benefit themselves unless expressly allowed by the document. This includes decisions benefiting the agent’s close relatives unless such actions are clearly in the principal’s interest or are explicitly permitted by the POA .
Revocation and Termination in Ohio
Termination of DPOA
- Occurs upon the principal’s death, revocation of the form, fulfillment of the document’s purpose, or revocation of the agent’s authority.
- Additionally, if the agent dies, becomes incapacitated, resigns, or if the marriage between the agent and principal ends (if relevant), and no successor agent is named, the DPOA terminates (§ 1337.30).
- The revocation must also be recorded (§ 1337.05).
Safekeeping and Registration
- If the POA grants real property powers, you should record the document in the county’s Recorder’s Office where the property is located or where future real estate transactions might occur (§ 1337.04).
- For added security, storing the document in multiple locations, such as with a trusted attorney or in a safe deposit box, is recommended.
Additional Resources
- Ohio Legal Help: Offers resources and legal assistance for those in need.
- Ohio State Bar Association: Provides information and resources for legal advice in Ohio.
- Local County Recorder’s Offices: For recording and safekeeping of real property POA documents.
