Ohio Durable Power of Attorney for Health Care Law

Ohio Durable Power of Attorney for Health Care Law

Power of Attorney and Health Care – General – Ohio

Selected Definitions

A “permanently unconscious state” is a state of permanent unconsciousness in a principal that, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by the principal’s attending physician and one other physician who has examined the principal, is characterized by both of the following:

Irreversible unawareness of one’s being and environment.

Total loss of cerebral cortical functioning, resulting in the principal having no capacity to experience pain or suffering.

A “terminal condition” is an irreversible, incurable, and untreatable condition caused by disease, illness, or injury from which, to a reasonable degree of medical certainty both of the following apply:

There can be no recovery.

Death is likely to occur within a relatively short time if life sustaining treatment is not administered.

Requirements, Execution, and Effectuation of Power of Attorney

An adult who is of sound mind may create a valid durable power of attorney for health care by executing a durable power of attorney in accordance with the statutory requirements.

The power of attorney authorizes an attorney in fact to make health care decisions for the principal at any time that the attending physician of the principal determines that the principal has lost the capacity to make informed health care decisions for the principal.

Except as otherwise statutorily provided, a power of attorney for health care may include the right to give informed consent, to refuse to give informed consent, or to withdraw informed consent to any health care that is being or could be provided to the principal.

To be valid, a durable power of attorney for health care must satisfy both of the following:

It must be signed by the principal and state the date of its execution.

It must be witnessed or acknowledged by the principal (see below).

Except as otherwise statutorily provided, a power of attorney for health care may designate any competent adult as the attorney in fact.

The attending physician of the principal and the administrator of any nursing home in which the principal is receiving care may not be designated as an attorney in fact in a durable power of attorney for health care.

An employee or agent of the attending physician of the principal and an employee or agent of any health care facility in which the principal is being treated may not be designated as an attorney in fact in a durable power of attorney for health care. Provided, however, a principal may designate either type of employee or agent as the principal’s attorney in fact if the individual is a competent adult and related to the principal by blood, marriage, or adoption, or if the individual is a competent adult and the principal and the individual are members of the same religious order.

Expiration of Power of Attorney

A durable power of attorney for health care does not expire unless the principal specifies an expiration date in the instrument. However, when a durable power of attorney contains an expiration date, if the principal lacks the capacity to make informed health care decisions for the principal on the expiration date, the instrument continues in effect until the principal regains the capacity to make informed health care decisions for the principal.

Witnesses

A durable power of attorney for health care must be witnessed by at least two individuals who are adults and who are not ineligible to be witnesses.

The following persons may not be witnesses:

Any person who is related to the principal by blood, marriage, or adoption;

Any person who is designated as the attorney in fact in the instrument;

The attending physician of the principal; and

The administrator of any nursing home in which the principal is receiving care.

The principal must sign or acknowledge his/her signature in the presence of each witness.

The witnessing of a durable power of attorney for health care shall involve the principal signing, or acknowledging the principal’s signature, at the end of the instrument in the presence of each witness. Then, each witness shall subscribe the witness’s signature after the signature of the principal and, by doing so, attest to the witness’s belief that the principal appears to be of sound mind and not under or subject to duress, fraud, or undue influence. The signatures of the principal and the witnesses under this division are not required to appear on the same page of the instrument.

If the durable power of attorney for health care is acknowledged, it must be acknowledged before a notary public, who must make the statutory certification and must attest that the principal appears to be of sound mind and not under or subject to duress, fraud, or undue influence.

Conflicts Between Durable Power of Attorney, Declaration, and DNR Identification

If a principal has both a valid durable power of attorney for health care and a valid declaration, division (B) of § 2133.03 applies.

If a principal has both a valid durable power of attorney for health care and a DNR identification that is based upon a valid declaration, and if the declaration supersedes the durable power of attorney for health care, the DNR identification supersedes the durable power of attorney for health care to the extent of any conflict between the two.

A valid durable power of attorney for health care supersedes any DNR identification that is based upon a do-not-resuscitate order that a physician issued for the principal which is inconsistent with the durable power of attorney for health care or a valid decision by the attorney in fact under a durable power of attorney.

Revocation

§ 1337.17 contains the “notice” which must be given to a declarant when executing a printed form.  In that “notice,” the following information regarding revocation is provided:

You have the right to revoke the designation of the attorney in fact and the right to revoke this entire document at any time and in any manner. Any such revocation generally will be effective when you express your intention to make the revocation. However, if you made your attending physician aware of this document, any such revocation will be effective only when you communicate it to your attending physician, or when a witness to the revocation or other health care personnel to whom the revocation is communicated by such a witness communicate it to your attending physician.”

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Inside Ohio Durable Power of Attorney for Health Care Law