Power of attorney

A power of attorney is a written document by which a principal gives to an agent (the attorney-in-fact) the authority to act for the principal.

The Ohio Revised Code does not require any particular form for the creation of a valid power of attorney, although it does have certain requirements regarding contents and execution:

          ●   if the power of attorney is for the
         conveyance, mortgage, or lease of an
         interest in real property or the transfer of
         personal property, it must be notarized
         (R.C. 1337.01);

          ●   if it is a durable power of attorney (one that
         remains in effect if the principal becomes
         incapacitated), it must contain certain
         language (R.C. 1337.09(A)); or

          ●   if it gives the agent authority to make
         health-care decisions for the principal if the
         principal becomes incapacitated, t must be a
         separate document. (See Advance Directives
         & R.C. Chapter 1337.)

Statutory power of attorney

The bill sets forth a form that may be used to create a power of attorney (R.C. 1337.18(A)). The bill does not require that the form be used; unless the Revised Code specifically requires otherwise in a particular situation, any form that meets the common-law requirements for a power of attorney may be used. (R.C. 1337.18(A) and (B).)

The statutory form begins with a notice that the powers granted by the document are "broad and sweeping" but do not include the authority to make health-care decisions for the principal.

The form advises the agent that once the agent accepts the designation as agent, a fiduciary relationship is created.

The form expressly puts the agent on notice that if the agent violates the terms of the instrument or the fiduciary duties created by the agency relationship, the agent will be liable to the principal or the principal's successors for loss or damage caused by the violation.

The form includes a list of 22 areas in which the principal may grant power to the agent by initialing the appropriate line.

Under the bill, when a principal gives an agent a power of attorney that incorporates by reference a particular power set forth in R.C. 1337.20, the principal authorizes the agent to do any lawful act with respect to that particular power, except as expressly modified in the power of attorney. This provision applies to any valid power of attorney, not just the statutory form created by R.C. 1337.18.