Ohio Healthcare Power of Attorney Requirements

Introduction

Key Things to Know

1. 1

   Ohio actually has two different documents called "durable" power of attorney, and this one covers only health care: a Durable Power of Attorney for Health Care, created under Ohio Revised Code Sections 1337.11 to 1337.17, lets you (the principal) name a trusted adult (your attorney in fact, or agent) to make health care decisions for you once you lose the capacity to make them yourself.

2. 2

   Your attorney in fact's authority to make decisions does not start the moment you sign. It begins only after your attending physician determines that you have lost the capacity to make informed health care decisions (Ohio Rev. Code Section 1337.13(A)(1)).

3. 3

   If you specifically authorize it in the document, your attorney in fact may start obtaining information about your health immediately upon signing, regardless of your capacity, even though actual decision-making authority still waits for the physician's determination.

4. 4

   Your attorney in fact cannot be your attending physician or the administrator of a nursing home where you are receiving care. An employee of either may not serve unless that person is your relative or a member of your same religious order (Section 1337.12).

5. 5

   You must sign in front of at least two adult witnesses who are not related to you, not your named attorney in fact, not your attending physician, and not a nursing home administrator, or sign before a notary public instead. You do not need both.

6. 6

   You can revoke the document at any time and in any manner. If your physician already knows about it, the revocation is effective once it is communicated to that physician (Section 1337.14).

7. 7

   Ohio has no central state registry for this document. Keep the signed original and give copies to your physician, your attorney in fact, and any alternates.

8. 8

   This is a different document from Ohio's general Power of Attorney, which covers money and property and is durable by default under a different set of statutes (Sections 1337.21 to 1337.64).

Ohio Requirements for Healthcare Power of Attorney

• Designation of Healthcare Agent (Ohio Revised Code Section 1337.12)

  The principal designates an attorney in fact (agent) to make health care decisions. Ohio's statute requires designating the attorney in fact by name in the instrument.

• Alternate Agents (Ohio Revised Code Section 1337.12)

  Ohio's statute permits naming one or more alternate attorneys in fact to serve if a prior choice is unable or unwilling to act.

• Agent Authority Scope (Ohio Revised Code Section 1337.13)

  The attorney in fact's authority is defined and limited by Section 1337.13: the agent must act consistently with the principal's known wishes, or in the principal's best interest if wishes are unknown (division (A)(1)), and that authority is restricted regarding life-sustaining treatment absent a terminal condition or permanently unconscious state (division (B)), comfort care (division (C)), a pregnant principal (division (D)), and nutrition or hydration (division (E)).

• HIPAA Authorization (45 CFR Section 164.508)

  Federal HIPAA regulations govern how the attorney in fact can be authorized to access the principal's protected health information once the document is in effect.

• Execution Requirements (Ohio Revised Code Section 1337.12)

  The document must be signed at the end of the instrument by the principal and dated (division (A)(1)(a)), then either witnessed by at least two eligible adult witnesses (division (B)) or acknowledged before a notary public (division (C)). The principal must sign the document personally; Ohio's healthcare power of attorney statute does not permit another person to sign on the principal's behalf.

• Witness Eligibility (Ohio Revised Code Section 1337.12)

  If using witnesses instead of notarization, neither witness may be a person related to the principal by blood, marriage, or adoption, the named attorney in fact or alternate attorney in fact, the principal's attending physician, or the administrator of a nursing home where the principal is receiving care.

• Revocation Provisions (Ohio Revised Code Section 1337.14)

  The principal may revoke the durable power of attorney for health care, or just the designation of the attorney in fact, at any time and in any manner that expresses an intent to revoke. If the principal's attending physician already knew of the document, the revocation is effective as to that physician once communicated by the principal, a witness to the revocation, or other health care personnel informed by such a witness.

• Activation Conditions (Ohio Revised Code Section 1337.13(A)(1))

  The attorney in fact's authority to make health care decisions becomes exercisable only when the principal's attending physician determines that the principal has lost the capacity to make informed health care decisions.

• Pregnancy Provisions (Ohio Revised Code Section 1337.13(D))

  Section 1337.13(D) restricts the attorney in fact's authority to refuse or withdraw informed consent to health care for a pregnant principal where doing so would terminate the pregnancy, subject to specific statutory medical conditions.

• Guardian Nomination (Ohio Revised Code Section 1337.12(E))

  A principal may nominate a guardian of the principal's person (and other matters) within the durable power of attorney for health care itself, under Section 1337.12(E).

• Anatomical Gifts Authorization (Ohio Revised Code Section 2108.04)

  Under Ohio's Revised Uniform Anatomical Gift Act, an agent authorized to make health care decisions for the principal may also make an anatomical gift on the principal's behalf unless the durable power of attorney for health care (or another signed record) prohibits it.

• Mental Health Treatment Decisions (Ohio Revised Code Section 1337.14)

  Under Section 1337.14, a declaration for mental health treatment does not revoke a principal's durable power of attorney for health care, but it supersedes that document specifically as to mental health treatment decisions. A principal who wants advance mental health treatment authority addressed directly should consider Ohio's separate Declaration for Mental Health Treatment.

• Compliance with Patient Self-Determination Act (42 U.S.C. Section 1395cc(f))

  Facilities that participate in Medicare and Medicaid must inform patients of their rights under state law to make advance directives, including a Durable Power of Attorney for Health Care.

• Out-of-State Recognition (Ohio Revised Code Section 1337.16)

  A durable power of attorney for health care executed under another state's law is considered valid in Ohio for purposes of Sections 1337.11 to 1337.17 as long as it substantially complies with that other state's law or with Ohio's own requirements (Section 1337.16).

• Conflict Resolution (Ohio Revised Code Section 1337.16)

  Ohio law addresses one specific form of conflict: a health care provider unwilling to comply with a decision made under the durable power of attorney for health care, on grounds of conscience, must not prevent or attempt to prevent the transfer of the principal to a willing and able provider or facility.

• Liability Protection (Ohio Revised Code Section 1337.15)

  Physicians, health care facilities and personnel, and the attorney in fact are protected from criminal prosecution, professional discipline, and civil liability when acting in good faith in reliance on a valid durable power of attorney for health care and consistent with its terms and Ohio law.

• Statutory Notice Compliance (Ohio Revised Code Section 1337.17)

  While Ohio does not prescribe an official fill-in-the-blank statutory form, Section 1337.17 requires that any printed form sold or distributed in Ohio for use by adults not advised by an attorney must include a specific mandatory "Notice to Adult Executing This Document," with certain content required to appear in conspicuous type.