Sign In

Report of the Estate Planning, Trust and Probate Law Section

To the Council of Delegates:

The Board of Governors of the Estate Planning, Trust, and Probate Law Section respectfully recommends two proposals for your consideration.

1. In its current form, Section 2106.18 generally provides a surviving spouse with the right to receive outside of probate up to two "automobiles" worth a total of no more than $40,000. This provision has been held to apply to automobiles and certain trucks, but not to motorcycles. Under this proposal, a surviving spouse could select a motorcycle as one or both of the vehicles to which such spouse is entitled under Section 2106.18. The proposal is marked Exhibit A.

2. A proposal for legislation creating an Ohio Statutory Financial Power of Attorney Form and a Statutory Construction of Powers as fully explained in Exhibit B.

 

Respectfully submitted,
Andrew Fabens, Cleveland
Chair

Exhibit A

˜ 2106.18. Transfer of automobile, motorcycle, and truck titles.

(A) Upon the death of a married resident who owned at least one automobile at the time of death, the interest of the deceased spouse in up to two automobiles that are not transferred to the surviving spouse due to joint ownership with right of survivorship established under section 2131.12 of the Revised Code, that are not transferred to a transfer-on-death beneficiary or beneficiaries designated under section 2131.13 of the Revised Code, and that are not otherwise specifically disposed of by testamentary disposition may be selected by the surviving spouse. This interest shall immediately pass to the surviving spouse upon transfer of the title or titles in accordance with section 4505.10 of the Revised Code. The sum total of the values of the automobiles selected by a surviving spouse under this division, as specified in the affidavit that the surviving spouse executes pursuant to division (B) of section 4505.10 of the Revised Code, shall not exceed forty thousand dollars. Each automobile that passes to a surviving spouse under this division shall not be considered an estate asset and shall not be included in the estate inventory.

(B) The executor or administrator, with the approval of the probate court, may transfer title to an automobile owned by the decedent to any of the following:

(1) The surviving spouse, when the automobile is purchased by the surviving spouse pursuant to section 2106.16 of the Revised Code;

(2) A distributee;

(3) A purchaser.

(C) The executor or administrator may transfer title to an automobile owned by the decedent without the approval of the probate court to any of the following:

(1) A legatee entitled to the automobile under the terms of the will;

(2) A distributee if the distribution of the automobile is made without court order pursuant to section 2113.55 of the Revised Code;

(3) A purchaser if the sale of the automobile is made pursuant to section 2113.39 of the Revised Code.

(D) As used in division (A) of this section, "automobile" includes a motorcycle or a truck if the truck was used as a method of conveyance by the deceased spouse or the deceased spousefs family when the deceased spouse was alive.

Exhibit B

The Estate Planning, Trust and Probate Law Section Board of Governors proposes for Ohio a statutory power of attorney for financial matters like that existing in other states that have significant financial and commercial centers.

Durable powers of attorney for financial matters are of relatively recent invention, beginning in earnest only in the late 1970fs. However the utility of such documents was quickly accepted and all states have laws permitting durable powers of attorneys for financial matters.

Acting in the belief that this is an area where uniformity among the states is desirable, the National Conference of Commissioners on Uniform State Law has promulgated and suggested a uniform act. Thirteen states have enacted that uniform act in one form or another. Although the 13 states represent about 25% of the states, these 13 states represent about 42% of the U. S. population and include states with significant financial and commercial centers, namely California, New York, Illinois, Texas, and North Carolina.

Durable powers of attorneys for financial matters are widely used by Ohio citizens and have become a routine part of most individualsf estate planning documents. As our society becomes more mobile and financial transactions are handled by multi-state financial corporations, a statutory form will be more readily acceptable and will allow commercial transactions effectuated by an agent to be handled with fewer questions than is currently the case. A statutory form also will define more clearly to the principal the authority that is being given and to the agent the responsibilities being taken.

The proposed legislation consists of three new sections. The first section states that the statutory form is permissive and not mandatory. That is, any attorney can draft a financial power of attorney using any provisions or language, or can modify the statutory form in any way, all as the attorney considers best for his or her client. This is consistent with current law, leaving it to the attorney to prepare the document as the attorney determines best. As a result, the statutory form would have no effect on any existing powers of attorneys. The first section also states that any power of attorney can incorporate the definitions found in the statutory powers by appropriate reference.

The second section sets forth the statutory definitions of various powers that can be delegated to an agent. The statutory list of powers is not exclusive and an attorney can provide additional or different powers, all as the attorney considers best.

The third section sets forth a suggested form. As noted above, this form is permissive and not mandatory.

Concern has been expressed that a statutory financial power of attorney form might aid in the unauthorized practice of law or induce the public to write inappropriate instruments for their own use. Forms of financial powers of attorney already are readily available to the general public in office supply stores, through the purchase of software, as well as on the internet. This is not unique to powers of attorney. One can find myriad legal forms readily available, including lease agreements, real estate deeds, partnership agreements, articles or organization and bylaws for corporations, trust agreements, and wills. There is plenty of material out there already for mischief and mistake and the fact that one more form might be added to the list does not substantially add to the problem. It is submitted that the benefit to the citizens of Ohio of having a widely accepted and understood form for the financial and commercial world of the future by far outweighs the consideration that the statutory form might induce a misuse of a power of attorney that might not otherwise have occurred had there not been a statutory form. The committee found no evidence that those other states that have already adopted the statutory power of attorney have experienced any difficulty with an increase in the unauthorized practice of the law or mistaken "do-it-yourself" drafting by the general public and it is submitted that the enactment of proposed legislation will simply bring Ohio in line with other states with significant financial and commercial centers and with citizens who have financial and business matters that are national in scope.

The Estate Planning, Trust and Probate Law Section therefore asks the council delegates to approve the attached legislation to be moved forward as OSBA sponsored legislation.

ORC ˜1337._____ Ohio Statutory Power of Attorney Form Not Exclusive; Incorporation of Statutory Powers by Reference.

The Ohio statutory power of attorney form is not a mandated form and any other power of attorney form or modification of the Ohio statutory power of attorney form is permitted.

Any power of attorney form, statutory or otherwise, may incorporate by reference any one or more powers in ORC Section 1337._____, by referencing ORC Section 1337._____, and the power or powers to be incorporated.

 

ORC ˜ 1337._____ Construction of powers generally granted in the Ohio Statutory Power of Attorney Form.

By executing an Ohio statutory power of attorney or any other durable power of attorney that incorporates by reference a power in ORC Section 1337._____, the principal, except as modified in the durable power of attorney, authorizes the agent with respect to that power to:

(1) demand, receive, and obtain by litigation or otherwise, money or other thing of value to which the principal is, may become, or claims to be entitled; and conserve, invest, disburse, or use anything so received for the purposes intended;

(2) contract in any manner with any person, on terms agreeable to the agent, to accomplish a purpose of a transaction, and perform, rescind, reform, release, or modify the contract or another contract made by or for the principal;

(3) execute, acknowledge, seal, and deliver a deed, revocation, mortgage, security interest, lease, notice, check, promissory note, electronic funds transfer, release, or other instrument or communication the agent considers desirable to accomplish a purpose of a transaction;

(4) prosecute, defend, submit to arbitration, settle, and propose or accept a compromise with respect to, a claim existing in favor of or against the principal or intervene in litigation relating to the claim;

(5) seek on the principalfs behalf the assistance of a court to carry out an act authorized by the durable power of attorney;

(6) engage, compensate, and discharge an attorney, accountant, expert witness, or other assistant;

(7) keep appropriate records of each transaction, including an accounting of receipts and disbursements;

(8) prepare, execute, and file a record, report, or other document the agent considers desirable to safeguard or promote the principalfs interest under a statute or governmental regulation;

(9) reimburse the agent for expenditures properly made by the agent in exercising the powers granted by the durable power of attorney; and

(10) in general, do any other lawful act with respect to the power.

ORC ˜ 1337.____ Construction of specific powers granted in the Ohio Statutory Power of Attorney Form.

(A) Construction of Power Relating to Real Property Transactions.

Language granting power with respect to transactions concerning real property authorizes the agent to:

(1) accept as a gift or as security for a loan, reject, demand, buy, lease, receive, or otherwise acquire, an interest in real property or a right incident to real property or real property held in an undisclosed trust;

(2) sell, exchange, convey with or without covenants, quitclaim, release, surrender, mortgage, encumber, partition, consent to partitioning, subdivide, apply for zoning, rezoning, or other governmental permits, plat or consent to platting, develop, grant options concerning, lease, sublease, or otherwise dispose of, an interest in real property or a right incident to real property;

(3) release, assign, satisfy, and enforce by litigation or otherwise, a mortgage, deed of trust, encumbrance, lien, or other claim to real property which exists or is asserted;

(4) do any act of management or of conservation with respect to an interest in real property, or a right incident to real property, owned or claimed to be owned by the principal, including:

(A) insuring against a casualty, liability, or loss;

(B) obtaining or regaining possession, or protecting the interest or right, by litigation or otherwise;

(C) paying, compromising, or contesting taxes or assessments, or applying for and receiving refunds in connection with them; and

(D) purchasing supplies, hiring assistance or labor, and making repairs or alterations in the real property;

(5) use, develop, alter, replace, remove, erect, or install structures or other improvements upon real property in or incident to which the principal has, or claims to have, an interest or right;

(6) participate in a reorganization with respect to real property or a legal entity that owns an interest in or right incident to real property and receive and hold, directly or indirectly, shares of stock or obligations received in a plan of reorganization, and act with respect to them, including:

(A) selling or otherwise disposing of them;

(B) exercising or selling an option, conversion, or similar right with respect to them; and

(C) voting them in person or by proxy;

(7) if specifically authorized in the durable power of attorney, change the form of title of an interest in or right incident to real property; and

(8) dedicate to public use, with or without consideration, easements or other real property in which the principal has, or claims to have, an interest.

(B) Construction of Power Relating to Tangible Personal Property Transactions.

Language granting power with respect to transactions concerning tangible personal property authorizes the agent to:

(1) accept as a gift or as security for a loan, reject, demand, buy, receive, or otherwise acquire ownership or possession of tangible personal property or an interest in tangible personal property;

(2) sell, exchange, convey with or without covenants, release, surrender, create a security interest in, grant options concerning, lease, sublease to others, or otherwise dispose of tangible personal property or an interest in tangible personal property;

(3) release, assign, satisfy, or enforce by litigation or otherwise, a security interest, lien, or other claim for the principal, with respect to tangible personal property or an interest in tangible personal property;

(4) do an act of management or conservation with respect to tangible personal property or an interest in tangible personal property for the principal, including:

(A) insuring against casualty, liability, or loss;

(B) obtaining or regaining possession, or protecting the property or interest, by litigation or otherwise;

(C) paying, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with taxes or assessments;

(D) moving from place to place;

(E) storing for hire or on a gratuitous bailment; and

(F) using, altering, and making repairs or alterations; and

(5) if specifically authorized in the durable power of attorney, change the form of title of an interest in or right incident to tangible personal property.

(C) Construction of Power Relating to Stock and Bond Transactions.

Language granting power with respect to transactions concerning stocks and bonds authorizes the agent to:

(1) buy, sell, and exchange stocks, bonds, mutual funds, and all other types of securities and financial instruments, whether held directly or indirectly, except commodity futures contracts and call and put options on stocks and stock indexes;

(2) receive certificates and other evidences of ownership with respect to securities;

(3) exercise voting rights with respect to securities in person or by proxy;

(4) enter into voting trusts; and

(5) consent to limitations on the right to vote.

(D) Construction of Power Relating to Commodity and Option Transactions.

Language granting power with respect to transactions concerning commodities and options authorizes the agent to:

(1) buy, sell, exchange, assign, settle, and exercise commodity futures contracts and call and put options on stocks and stock indexes traded on a regulated option exchange; and

(2) establish, continue, modify, and terminate option accounts with a broker.

(E) Construction of Power Relating to Banking and Other Financial Institution Transactions.

Language granting power with respect to transactions concerning banks and other financial institutions authorizes the agent to:

(1) continue, modify, and terminate an account or other banking arrangement made by or for the principal;

(2) establish, modify, and terminate an account or other banking arrangement with a bank, trust company, savings and loan association, credit union, thrift company, brokerage firm, or other financial institution selected by the agent;

(3) contract to procure other services available from a financial institution as the agent considers desirable;

(4) withdraw by check, order, or otherwise money or property of the principal deposited with or left in the custody of a financial institution;

(5) receive bank statements, vouchers, notices, and similar documents from a financial institution and act with respect to them;

(6) borrow money at an interest rate agreeable to the agent and pledge as security personal property of the principal necessary in order to borrow, pay, renew, or extend the time of payment of a debt of the principal;

(7) make, assign, draw, endorse, discount, guarantee, and negotiate promissory notes, checks, drafts, and other negotiable or nonnegotiable paper of the principal, or payable to the principal or the principalfs order, make funds transfers, receive the cash or other proceeds of those transactions, accept a draft drawn by a person upon the principal, and pay it when due;

(8) receive for the principal and act upon a sight draft, warehouse receipt, or other negotiable or nonnegotiable instrument;

(9) apply for and receive letters of credit, credit and debit cards, and travelerfs checks from a financial institution, and give an indemnity or other agreement in connection with letters of credit; and

(10) consent to an extension of the time of payment with respect to commercial paper or a financial transaction with a financial institution.

(F) Construction of Power Relating to Business Operating Transactions.

Language granting power with respect to operating a business authorizes the agent to:

(1) operate, buy, sell, enlarge, reduce, and terminate a business interest;

(2) act for a principal, subject to the terms of a partnership agreement or operating agreement, to:

(A) perform a duty or discharge a liability and exercise a right, power, privilege, or option that the principal has, may have, or claims to have, under the partnership agreement or operating agreement, whether or not the principal is a partner in a partnership or member of a limited liability company;

(B) enforce the terms of the partnership agreement or operating agreement by litigation or otherwise; and

(C) defend, submit to arbitration, settle, or compromise litigation to which the principal is a party because of membership in a partnership or limited liability company;

(3) exercise in person or by proxy, or enforce by litigation or otherwise, a right, power, privilege, or option the principal has or claims to have as the holder of a bond, share, or other instrument of similar character and defend, submit to arbitration, settle, or compromise litigation to which the principal is a party because of a bond, share, or similar instrument;

(4) with respect to a business controlled by the principal:

(A) continue, modify, renegotiate, extend, and terminate a contract made with an individual or a legal entity by or for the principal with respect to the business before execution of the durable power of attorney;

(B) determine:

(i) the location of its operation;

(ii) the nature and extent of its business;

(iii) the methods of manufacturing, selling, merchandising, financing, accounting, and advertising employed in its operation;

(iv) the amount and types of insurance carried;

(v) the mode of engaging, compensating, and dealing with its accountants, attorneys, and other agents and employees;

(C) change the name or form of organization under which the business is operated and enter into a partnership agreement or operating agreement with other persons or organize a corporation or other business entity to take over all or part of the operation of the business; and

(D) demand and receive money due or claimed by the principal or on the principalfs behalf in the operation of the business, and control and disburse the money in the operation of the business;

(5) put additional capital into a business in which the principal has an interest;

(6) join in a plan of reorganization, consolidation, or merger of the business;

(7) sell or liquidate a business or part of it at the time and upon the terms the agent considers desirable;

(8) establish the value of a business under a buy-out agreement to which the principal is a party;

(9) prepare, sign, file, and deliver reports, compilations of information, returns, or other papers with respect to a business which are required by a governmental agency or instrumentality or which the agent considers desirable, and make related payments; and

(10) pay, compromise, or contest taxes or assessments and do any other act which the agent considers desirable to protect the principal from illegal or unnecessary taxation, fines, penalties, or assessments with respect to a business, including attempts to recover, in any manner permitted by law, money paid before or after the execution of the durable power of attorney.

(G) Construction of Power Relating to Proprietary Interests and Materials Transactions.

Language granting power with respect to proprietary interests and materials transactions authorizes the agent in connection with or with respect to any artistic, domestic, intellectual, literary, mechanical, scientific, or other proprietary interest or material to:

(1) abandon, apply for, extend, maintain, modify, receive, renew, secure, or terminate any protection by copyright, patent, registration, or other mechanism for any composition, design, device, discovery, formula, invention, mark, name, process, program, recipe, service mark, trademark, trade name, or other protectable intangible or tangible endeavor or work;

(2) appeal from, compromise, conduct, defend, intervene in, participate in, prosecute, settle, or terminate any proceeding before any administrative, judicial, or other agency, board, body, commission, court, examiner, judge, magistrate, officer, or other official or tribunal with jurisdiction of any proprietary interest or material;

(3) arrange or contract for payment or receipt of any charges, fees, royalties, or other payments for assignment, license, sale, transfer, use, or other exploitation of any proprietary interest or material; and

(4) deal in and with any business data, business or trade secret, business method, client or customer list, dealership, franchise, license, manufacturing process, or other proprietary interest or material.

(H) Construction of Power Relating to Insurance and Annuity Transactions.

Language granting power with respect to insurance and annuities authorizes the agent to:

(1) continue, pay the premium or assessment on, modify, rescind, release, or terminate a contract procured by or for the principal which insures or provides an annuity to either the principal or another person, whether or not the principal is a beneficiary under the contract;

(2) procure new, different, and additional contracts of insurance and annuities for the principal and the principalfs spouse, children, and other dependents, and select the amount, type of insurance or annuity, and mode of payment;

(3) pay the premium or assessment on, modify, rescind, release, or terminate a contract of insurance or annuity procured by the agent;

(4) if specifically authorized in the durable power of attorney, designate the beneficiary of the contract;

(5) apply for and receive a loan on the security of a contract of insurance or annuity;

(6) surrender and receive the cash surrender value;

(7) exercise an election;

(8) change the manner of paying premiums;

(9) change or convert the type of insurance or annuity, with respect to which the principal has or claims to have a power described in this section;

(10) if specifically authorized in the durable power of attorney, change the beneficiary of a contract of insurance or annuity;

(11) apply for and procure government aid to guarantee or pay premiums of a contract of insurance on the life of the principal;

(12) collect, sell, assign, hypothecate, borrow upon, or pledge the interest of the principal in a contract of insurance or annuity; and

(13) pay from proceeds or otherwise, compromise or contest, and apply for refunds in connection with, a tax or assessment levied by a taxing authority with respect to a contract of insurance or annuity or its proceeds or liability accruing by reason of the tax or assessment.

(I) Construction of Power Relating to Retirement Plan Transactions.

Language granting power with respect to retirement plan transactions authorizes the agent to:

(1) contribute to, withdraw from and deposit funds in any type of retirement plan (which term includes, without limitation, any tax qualified or nonqualified pension, profit sharing, stock bonus, employee savings and other retirement plan, individual retirement account, deferred compensation plan and any other type of employee benefit plan);

(2) select and change payment options for the principal under any retirement plan;

(3) make rollover contributions from any retirement plan to other retirement plans or individual retirement accounts; and

(4) exercise all investment powers available under any type of self-directed retirement plan.

(J) Construction of Power Relating to Safe Deposit Box Transactions.

Language granting power with respect to safety deposit transactions authorizes the agent to:

(1) open, continue and have access to all safe deposit boxes;

(2) sign, renew, release or terminate any safe deposit contract; and

(3) drill or surrender any safe deposit box.

(K) Construction of Power Relating to Estate, Trust, and Other Beneficiary Transactions.

(a) Language granting power with respect to estates, trusts, and other relationships in which the principal is a beneficiary, authorizes the agent to act for the principal in all matters that affect a trust, probate estate, guardianship, conservatorship, escrow, custodianship, or other fund from which the principal is, may become, or claims to be entitled, as a beneficiary, to a share or payment, including to:

(1) accept, reject, disclaim, receive, receipt for, sell, assign, release, pledge, exchange, or consent to a reduction in or modification of a share in or payment from the fund;

(2) demand or obtain by litigation or otherwise money or other thing of value to which the principal is, may become, or claims to be entitled by reason of the fund;

(3) initiate, participate in, and oppose litigation to ascertain the meaning, validity, or effect of a deed, will, declaration of trust, or other instrument or transaction affecting the interest of the principal;

(4) initiate, participate in, and oppose litigation to remove, substitute, or surcharge a fiduciary;

(5) conserve, invest, disburse, and use anything received for an authorized purpose;

(6) transfer an interest of the principal in real property, stocks, bonds, accounts with financial institutions, insurance, and other property, to the trustee of a revocable trust created by the principal as settlor;

(7) transfer an interest of the principal in real property to any trustee or trustees of an undisclosed trust for the benefit of the principal; and

(8) if specifically authorized in the durable power of attorney, to designate or change the designation of a beneficiary to receive any property, benefit, or contractual right on the principalfs death.

(b) Unless expressly authorized in the durable power of attorney, language granting power with respect to estate, trust, and other beneficiary transactions does not include authority to create, modify, or revoke a trust, or fund with the principalfs property a trust not created by the principal or a person authorized to create a trust for the principal.

(L) Construction of Power Relating to Borrowing Transactions.

Language granting power with respect to borrowing transactions authorizes the agent to:

(1) borrow money;

(2) mortgage or pledge any real estate, or tangible or intangible personal property as security for such purposes; and

(3) sign, renew, extend, pay and satisfy any notes or other forms of obligations.

(M) Construction of Power Relating to Fiduciary Transactions.

Language granting power with respect to fiduciary transactions authorizes the agent to:

(1) represent and act for the principal in all ways and in all matters affecting any fund with respect to which the principal is a fiduciary;

(2) initiate, participate in, and oppose any proceeding, judicial or otherwise, for the removal, substitution, or surcharge of a fiduciary, to conserve, to invest or to disburse anything received for the purposes of the fund for which it is received, and to reimburse the agent for any expenditures properly made by the agent in the execution of the powers conferred on the agent by the statutory form power of attorney;

(3) agree and contract, in any manner, with any person, and on any terms which the agent selects for the accomplishment of the purposes enumerated in this subsection, and to perform, rescind, reform, release, or modify the agreement or contract or any other similar agreement or contract made by or for the principal;

(4) execute, acknowledge, verify, seal, file, and deliver any consent, designation, pleading, notice, demand, election, conveyance, release, assignment, check, pledge, waiver, admission of service, notice of appearance, or other instrument which the agent deems useful for the accomplishment of any of the purposes enumerated in this subsection;

(5) hire, discharge, and compensate any attorney, accountant, expert witness, or other assistants, when the agent deems that action to be desirable for the proper execution by the agent of any of the powers described in this subsection, and for the keeping of needed records; and

(6) in general, and in addition to all the specific acts listed in this subsection, to do any other acts with respect to a fund of which the principal is a fiduciary.

Nothing in this subsection authorizes delegation of any power of a fiduciary unless the power is one the fiduciary is authorized to delegate under the terms of the instrument governing the exercise of the power or under local law.

For the purposes of clauses (1) to (6), "fund" means any trust, probate estate, guardianship, conservatorship, escrow, custodianship, or any other fund in which the principal has, or claims to have, an interest as a fiduciary.

All powers described in this subsection are exercisable equally with respect to any fund of which the principal is a fiduciary to the giving of the power of attorney or becomes a fiduciary after that time, and whether located in the state of Ohio or elsewhere.

(N) Construction of Power Relating to Personal Relationships and Affairs.

Language granting power with respect to personal and family maintenance authorizes the agent to:

(1) do the acts necessary to maintain the customary standard of living of the principal, the principalfs spouse, children, and other individuals customarily or legally entitled to be supported by the principal, including providing living quarters by purchase, lease, or other contract, or paying the operating costs, including interest, amortization payments, repairs, and taxes, on premises owned by the principal and occupied by those individuals;

(2) provide for the individuals described in paragraph (1) normal domestic help, usual vacations and travel expenses, and funds for shelter, clothing, food, appropriate education, and other current living costs;

(3) pay for the individuals described in paragraph (1) expenses for necessary medical, dental, and surgical care, hospitalization, and custodial care;

(4) act as the principalfs personal representative pursuant to sections 1171 through 1179 of the Social Security Act as added by sections 262 and 264 of Public Law 104-191 [or successor sections] and applicable regulations, in making decisions related to the past, present, or future payment for the provision of health care consented to by the principal or anyone authorized under the law of this state to consent to health care for the principal;

(5) continue any provision made by the principal, for the individuals described in paragraph (1), for automobiles or other means of transportation, including registering, licensing, insuring, and replacing them;

(6) maintain or open charge accounts for the convenience of the individuals described in paragraph (1) and open new accounts the agent considers desirable to accomplish a lawful purpose; and

(7) continue payments incidental to the membership or affiliation of the principal in a church, club, society, order, or other organization or to continue contributions to those organizations.

(O) Construction of Power Relating to Benefits From Social Security, Medicare, Medicaid, or Other Governmental Programs, or Military Service.

Language granting power with respect to benefits from social security, Medicare, Medicaid or other governmental programs, or civil or military service, authorizes the agent to:

(1) execute vouchers in the name of the principal for allowances and reimbursements payable by the United States or a foreign government or by a state or subdivision of a state to the principal, including allowances and reimbursements for transportation of the principalfs spouse, children, and other individuals customarily or legally entitled to be supported by the principal, and for shipment of their household effects;

(2) take possession and order the removal and shipment of property of the principal from a post, warehouse, depot, dock, or other place of storage or safekeeping, either governmental or private, and execute and deliver a release, voucher, receipt, bill of lading, shipping ticket, certificate, or other instrument for that purpose;

(3) prepare, file, and prosecute a claim of the principal to a benefit or assistance, financial or otherwise, to which the principal claims to be entitled under a statute or governmental regulation;

(4) prosecute, defend, submit to arbitration, settle, and propose or accept a compromise with respect to any benefits the principal may be entitled to receive; and

(5) receive the financial proceeds of a claim of the type described in this section and conserve, invest, disburse, or use anything so received for a lawful purpose.

(P)Construction of Power Relating to Records, Reports, and Statements.

Language granting power with respect to records, reports, and statements authorizes the agent to:

(1) keep records of all cash received and disbursed for or on account of the principal, of all credits and debits to the account of the principal and of all transactions affecting in any way the assets and liabilities of the principal;

(2) prepare, execute and file all tax, Social Security, unemployment insurance and information returns, required by the laws of the United States, of any state or of any subdivision thereof or of any foreign government; to prepare, execute and file all other papers and instruments which the agent deems desirable or necessary for the safeguarding of the principal against excess or illegal taxation or against penalties imposed for claimed violation of any law or other governmental regulation;

(3) prepare, execute and file any record, report or statement, which the agent deems desirable or necessary for the safeguarding or maintenance of the principalfs interest, with respect to price, rent, wage or rationing control, or other governmental activity;

(4) hire, discharge and compensate any attorney, accountant, or other assistant or assistants when the agent deems such action to be desirable for the proper execution by him of any of the powers described in this section; and

(5) in general, and in addition to all the specific acts in this section enumerated, to do any other act or acts, which the principal can do through an agent, in connection with the preparation, execution, filing, storage or other utilization of any records, reports or statements of or concerning the principalfs affairs.

All powers described in this section shall be exercisable equally with respect to any records, reports or statements of or concerning the affairs of the principal existing at the giving of the power of attorney or thereafter arising, and whether arising in the state of Ohio or elsewhere.

(Q) Construction of Power Relating to Tax Matters.

Language granting power with respect to tax matters authorizes the agent to:

(1) prepare, sign, and file federal, state, local, and foreign income, gift, payroll, Federal Insurance Contributions Act returns, and other tax returns, claims for refunds, requests for extension of time, petitions regarding tax matters, and any other tax-related documents, including receipts, offers, waivers, consents (including consents and agreements under Internal Revenue Code Section 2032A or any successor section), closing agreements, and any power of attorney required by the Internal Revenue Service or other taxing authority with respect to a tax year upon which the statute of limitations has not run and the following 25 tax years;

(2) pay taxes due, collect refunds, post bonds, receive confidential information, and contest deficiencies determined by the Internal Revenue Service or other taxing authority;

(3) exercise any election available to the principal under federal, state, local, or foreign tax law; and

(4) act for the principal in all tax matters for all periods before the Internal Revenue Service, and any other taxing authority.

(R) Construction of Power Relating to Licenses.

Language granting power with respect to licenses authorizes the agent to obtain, renew or transfer:

(1) automobile, truck, boat and other vehicle licenses; and

(2) business licenses of any type.

(S) Construction of Power Relating to Access to Documents.

Language granting power with respect to access to documents authorizes the agent to:

(1) have access to and possession of the principalfs will, trust, instruments, deeds, life insurance policies, contracts, employee benefit records, and other documents, including, but not limited to, documents protected under the Graham Leach Bliley Act and the Health Insurance Portability and Accountability Act; and

(2) have access to mail and to redirect mail.

(T) Construction of Power Relating to Employment of Agents.

Language granting power with respect to employment of agents authorizes the agent to:

(1) employ agents such as legal counsel, accountants, investment advisors, expert witnesses, realtors, or other professional representation when the agent believes such action to be desirable; and

(2) pay any agents reasonable compensation.

(U) Construction of Power to Delegate.

Language with respect to delegation authorizes the agent to delegate any or all of the powers granted by the principal to any person or persons whom the agent selects.

(V) Construction of Power Relating to Claims and Litigation.

Language granting power with respect to claims and litigation authorizes the agent to:

(1) assert and prosecute before a court or administrative agency a claim, a claim for relief, cause of action, counterclaim, offset, or defense against an individual, organization, or government, including actions to recover property or other thing of value, to recover damages sustained by the principal, to eliminate or modify tax liability, or to seek an injunction, specific performance, or other relief;

(2) bring an action to determine adverse claims, intervene in litigation, and act as amicus curiae;

(3) in connection with litigation, procure an attachment, garnishment, libel, order of arrest, or other preliminary, provisional, or intermediate relief and use an available procedure to effect or satisfy a judgment, order, or decree;

(4) in connection with litigation, perform any lawful act, including acceptance of tender, offer of judgment, admission of facts, submission of a controversy on an agreed statement of facts, consent to examination before trial, and binding the principal in litigation;

(5) submit to arbitration, settle, and propose or accept a compromise with respect to a claim or litigation;

(6) waive the issuance and service of process upon the principal, accept service of process, appear for the principal, designate persons upon whom process directed to the principal may be served, execute and file or deliver stipulations on the principalfs behalf, verify pleadings, seek appellate review, procure and give surety and indemnity bonds, contract and pay for the preparation and printing of records and briefs, receive and execute and file or deliver a consent, waiver, release, confession of judgment, satisfaction of judgment, notice, agreement, or other instrument in connection with the prosecution, settlement, or defense of a claim or litigation;

(7) act for the principal with respect to bankruptcy or insolvency proceedings, whether voluntary or involuntary, concerning the principal or some other person, with respect to a reorganization proceeding, or a receivership or application for the appointment of a receiver or trustee which affects an interest of the principal in property or other thing of value; and

(8) pay a judgment against the principal or a settlement made in connection with litigation and receive and conserve money or other thing of value paid in settlement of or as proceeds of a claim or litigation.

Section 1337. _____ Ohio Statutory Power of Attorney Form

[The powers granted by this document are broad and sweeping. They are explained in Ohio Revised Code Section 1337. _____. If you have any questions about these powers, obtain legal advice. You can use any different form of power of attorney you may desire. This document does not authorize anyone to make health-care decisions for you. You can revoke this power of attorney at any time.]

Principal (Person Granting the Power)

Name: ______________________________

Address: ______________________________

______________________________

Telephone: ______________________________

1. Notice to Principal.

As the principal, you are using this document to give authority to another person, known as you agent or attorney-in-fact, to make decisions regarding your money and property. Your agent will have the powers that you indicate below to make decisions about your money and property without advance notice to you or approval by you.

Unless expressly authorized in the durable power of attorney, a durable power of attorney does not grant authority to an agent to:

(a) create, modify, or revoke a trust;

(b) fund with your property a trust not created by you or a person authorized to create a trust for your benefit;

(c) make or revoke a gift of your property in trust or otherwise;

(d) create or change rights of survivorship in your property or in property in which you may have an interest;

(e) designate or change the designation of a beneficiary to receive any property, benefit, or contractual right on your death, such as insurance benefits and retirement benefits;

(f) create in the agent or a person to whom the agent owes a legal duty of support the right to receive property, a benefit, or a contractual right in which you have an interest; or

(g) delegate the powers granted under the durable power of attorney to another person.

The powers that you give to your agent are explained more fully in Ohio Revised Code Section 1337._______. If you have any questions about this document or the powers that you are giving to your agent, you should obtain legal advice.

2. Notice to Agent.

As the agent, once you accept designation under this document or exercise authority granted to you by the principal, a fiduciary relationship is created between you and the principal. Unless otherwise modified in this power of attorney, your duties include the duty to:

Act in good faith, with reasonable care for the best interests of the principal;

Take no action beyond the scope of the authority given to you in this document; and

Keep complete record of all receipts, disbursements, and transactions conducted for the principal.

If you violate the terms of this document or the fiduciary duties created by this relationship, you will be liable to the principal or the principalfs successors for loss or damage caused by your violation.

If there is anything about this document or your duties that you do not understand, you should obtain legal advice.

3. Designation of Agent(s).

I, the above-named principal, hereby appoint and designate the following as my Attorney(s)-in-Fact. (Insert the name(s), address(es), and telephone number(s) of your agent(s) below. If more space is needed, you can attach additional sheets.)

Name:

Name:

Address:

 

Address:

Telephone:

Telephone:

 

4. Designation of Successor Agent(s).

(Optional: acts if any named Agent dies, resigns, or is otherwise unable to act or serve.)

I, the above-named principal, hereby appoint and designate the following as my successor Agent(s).

First Successor:

Second Successor:

Name:

Name:

Address:

Address:

Telephone:

Telephone:

[

If more than one Agent is designated, check the box in front of one of the following statements.]

  Each Agent may independently exercise the powers granted

  All Agents must jointly exercise the powers granted.

  A majority in number of Attorneys-in-Fact must jointly exercise the powers granted.

Any person can rely on a statement by a successor Agent that he or she is properly acting under this document and may rely conclusively on any action or decision made by such successor Agent. Such person does not have to make any further investigation or inquiry.

5. Grant of Power.

I, the above-named Principal hereby appoint the above named Agent(s) to act as my agent(s) in any way that I could act with respect to the following matters, as each of them is defined in Ohio Revised Code, section 1337. ___:

[To grant all of the following powers, initial the line in front of (W) and ignore the lines in front of the other powers. To grant one or more, but fewer than all, of the following powers, initial the line in front of each power you are granting. To withhold a power, do not initial the line in front of it. You may, but need not, cross out each power withheld.]

Initial

_______ (A) Real property transactions

_______ (B) Tangible personal property transactions

_______ (C) Stock and bond transactions

_______ (D) Commodity and option transactions

_______ (E) Banking and other financial institution transactions

_______ (F) Business operating transactions

_______ (G) Proprietary interests and materials transactions,

_______ (H) Insurance and annuity transactions

_______ (I) Retirement plan transactions

_______ (J) Safe deposit box transactions

_______ (K) Estate, trust and other beneficiary transactions

_______ (L) Borrowing transactions

_______ (M) Fiduciary transactions

_______ (N) Personal relationships and affairs

_______ (O) Benefits from social security, Medicare, Medicaid, and other governmental programs, or military service

_______ (P) Records, reports, and statements

_______ (Q) Tax matters

_______ (R) Licenses

_______ (S) Access to documents

_______ (T) Employment of Agents

_______ (U) Power to delegate

_______ (V) Claims and Litigation

_______ (W) All powers listed above

Special Instructions:

[On the following lines or on additional pages you may give special instructions limiting or extending the powers granted to your Agent.]

________________________________________________________________

________________________________________________________________

________________________________________________________________

________________________________________________________________

________________________________________________________________

6. Commencement and Duration of Power.

This power of attorney is effective:

[Check the appropriate box below to the left of your choice. If you do not check any box, this power of attorney will become effective when you sign it.]

  immediately.

  upon my incapacity as determined by the following person or persons and set forth in an affidavit:

  upon my incapacity as determined by two physicians and set forth in an affidavit.

  upon the following future date or event:

 
This power of attorney shall terminate:

[Check the appropriate box below to the left of your choice. If you do not check any box, this power of attorney will terminate upon your death.]

  upon my death.

  upon my incapacity as determined by the following person or persons and set forth in an affidavit:

  upon my incapacity as determined by two physicians and set forth in an affidavit.

  upon the following future date or event:

 
7. Durability of Power.

[The authority granted in this power of attorney can be effective even during a period of disability. Check the appropriate box below if you want this power of attorney to be effective or to not be effective during any period of disability.]

  This power of attorney will continue in force and effect even during any period in which I am disabled.

  This power of attorney will not be in force and have no effect during any period in which I am disabled.

8. Obtaining Personal Health Information.

  My Agent shall be treated as my personal representative for all purposes relating to my Personal Health Information as provided in 45 CFR 164.502(g)(2) and for the Health Insurance Portability and Accountability Act of 1996.

  My Agent shall not be treated as my personal representative for any purposes relating to my Personal Health Information as provided in 45 CFR 164.502(g)(2) and for the Health Insurance Portability and Accountability Act of 1996.

9. Compensation of Agent.

[Your Agent will be reimbursed for all reasonable expenses incurred in acting under this power of attorney. Check the box if you want your Agent to also be reasonably paid for services rendered as Agent.]

  My Agent is entitled to reasonable compensation for services rendered as Agent under this power of attorney.

10. Exoneration of Agent(s).

My Agent is released from any liability to me and my estate arising out of the acts or failures to act of my Agent, except for willful misconduct or gross negligence. I agree to indemnify and hold my Agent harmless against any liability or expense, including attorneyfs fees, that my Agent my incur as the result of acting or failing to act under this instrument, except for liability and expense resulting from willful misconduct or gross negligence.

11. Exoneration of Third Parties.

I agree that any third party who receives a copy of this document may act under it. Revocation of the power of attorney is not effective as to a third party until the third party learns of the revocation. I agree to indemnify the third party for any claims that arise against the third party because of reliance on this power of attorney.

12. Self-Dealing.

[With respect to the Agentfs right to or not to enter into transactions with you, check the box in front of one of the following statements.]

  My Agent can enter into transactions with me or in my behalf in which my Agent is personally interested as long as the terms of the transaction are fair to me, notwith standing any law prohibiting acts of self-dealing.

  My Agent cannot enter into transactions with me or in my behalf in which my Agent is personally interested.

13. Property to Which this Instrument Applies.

  This instrument will apply to all of my property, real or personal, wherever located.

  This instrument will apply to all of my property, real or personal, wherever located except for the following:

 [On the following lines or on additional pages you may list property not subject to this Power of Attorney.]

14. Amending and Revocation.

I can amend or revoke this durable power of attorney any time by a signed instrument delivered to my Agent. If this instrument has been filed or recorded in public records then any amendment or revocation also will be similarly filed or recorded, but such filing or recording will not be necessary to effectuate such amendment or revocation with respect to my Agent and to all persons who have actual knowledge of such amendment or revocation.

15. Nomination of Guardian.

[With respect to your right to nominate a guardian of your person or estate, or both, check the box in front of one of the following statements.]

  If a guardian or conservator is ever needed for my estate, I nominate my Agent or such other person as my Agent nominates as my guardian or conservator. This nomi nation revokes any other nomination I may have made in any other document dated prior to the date of this Power of Attorney, including any nomination set
forth in a Health Care Durable Power of Attorney.

  If a guardian or conservator is ever needed for my estate, I nominate ____________ ____________________ as my guardian or conservator. This nomination revokes any other nomination I may have made in any other document dated prior to the date of this Power of Attorney, including any nomination set forth in a Health Care Du rable Power of Attorney.

  I do not nominate any person as the guardian or conservator of my estate under this instrument.

16. Governing Law.

The laws of the State of Ohio will govern all questions pertaining to the validity and construction of this durable power of attorney.

IN WITNESS WHEREOF, I have signed this Power of Attorney on [Date].
______________________________

(Principalfs Signature)

[This instrument should be notarized or witnessed, or both, as applicable law may require or as may be desired.]

On [Date], this instrument was signed by [Name of Principal] in our presence and was acknowledged and declared by the Principal to be the Principalfs Durable Power of Attorney. Immediately thereafter, at the Principalfs request, in the Principalfs presence, and in the presence of each other, we signed this instrument as subscribing witnesses.

______________________________ ____________________________

(Witness) (Witness)

This document was acknowledged before me [date] by [Name of Principal] who is known to me or from whom I have obtained adequate proof of identity.

_______________________________

(Signature of notarial officer)

(Seal, if any) ____________________

(Title and Rank)


[My commission expires: ______________________]

Contact OSBA


Headquarters:

1700 Lake Shore Drive
Columbus, Ohio 43204

Phone:

(800) 282-6556


Email:

OSBA@Ohiobar.org

Connect with OSBA


Attorney Member Directory Search