Why Should I Have A Power of Attorney?
A power of attorney (POA) is a legal document that appoints someone to act on behalf of the person making the POA regarding personal, financial and business matters. Often a POA is used when failing eyesight or another physical infirmity makes it difficult for a person to continue handling day-to-day business. Any number of agents may be named, and specific provisions can control decision-making. An agent should be chosen carefully and only those powers necessary should be provided.
A POA can be useful if a person becomes mentally incapacitated. Otherwise, the probate court may need to appoint a guardian. While a POA is less restrictive and more cost effective, there are not the same safeguards that exist under a court-supervised guardianship.
Ohio’s POA law has changed. Ohio enacted its version of the Uniform Power of Attorney Act (UPOAA) effective March 22, 2012. The intention was to help detect and prevent financial exploitation of the elderly. A POA signed before March 22, 2012, is still valid, but it would be a good idea to have it reviewed by an attorney.
The powers given to an agent in a POA document can vary. The scope of an agent’s authority varies, but typically agents are generally empowered to handle day-to-day affairs. Additional powers can be granted, and some must be specifically stated. Unless the powers are specifically granted, an agent cannot: 1) create a trust or changes an existing trust; 2) give away property; 3) create or change rights of survivorship; 4) change beneficiary designations; or 5) delegate granted powers to others, because these are the powers most likely to be abused.Ohio law now makes all POAs “durable,” meaning that the agent can act even if the principal should become incapacitated, unless the document says otherwise.
There are individuals who can challenge an agent’s actions. Ohio law now recognizes a number of individuals who may file a motion asking the probate court to review the agent’s actions. However, if the principal asks the court to dismiss such a motion, the court must dismiss it unless the court finds that the principal is incapacitated. A POA also can be changed or canceled (revoked) at any time by the principal. This should be done in writing with a copy provided to all financial institutions where the principal has accounts. Simply destroying the original document is not enough.
An agent’s powers do end. An agent’s authority ends when the POA states that it will end, or when revoked. Otherwise an agent’s authority will end only when the principal dies. An agent can never act after knowing the principal has died.
For legal advice or preparation of a Power of Attorney, contact Jennings Law Offices, LLC, to schedule a confidential consultation.
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