Nichole Y. Shafer
Guest Columnist
We can obviously make our own decisions while we are alive. However, we may someday find ourselves in circumstances where we cannot make our own decisions. Such circumstances arise most frequently in the context of accidents, illnesses (physical or mental) and simple old age. Other times, we may be able but unwilling or not desiring to make our own decisions.
The document most commonly used for others to act on our behalf while we are alive is a power of attorney. The “principal” under a power of attorney is a person who does not, cannot or will not make decisions for himself or herself. The “agent” under a power of attorney is the one who makes decisions for the principal.
Powers of attorney can identify multiple agents and can also list successor agents to act if the initial agent or agents become unavailable. But under certain circumstances, an agent’s ability to act is terminated, which does not necessarily terminate the power of attorney. If an agent’s ability to act is terminated but a successor agent is listed on the power of attorney, then it’s likely the successor agent’s authority will begin.
Obviously, an agent’s authority to act under the power of attorney can be terminated when the principal revokes their authority or at a time when the power of attorney terminates. Additionally, an agent’s authority terminates when the agent dies, becomes incapacitated or resigns.
A less known way an agent’s authority terminates in a power of attorney is when an action is filed for divorce, dissolution or annulment of the agent’s marriage to the principal (unless the power of attorney provides otherwise). This termination by Ohio law allows for a practical solution to what most would assume: If you did not want to be married to the person, you likely do not want them making decisions for you.
Thus, after a divorce, dissolution or annulment, one should review estate planning documents with an attorney to see if powers of attorney need to be updated to reflect their wishes.
The above circumstances outline when an agent’s authority terminates under a power of attorney, but some circumstances terminate the entire power of attorney document.
The most obvious way to terminate a power of attorney is upon the death of the principal. Termination of a power of attorney upon death is another example of Ohio law having a practical solution to what most would assume, since upon death the will or payable on death beneficiaries should kick in.
Another common way a power of attorney is terminated is when the principal revokes the power of attorney. Finally, in some circumstances, the power of attorney terminates when the principal becomes incapacitated. This is not the case for all powers of attorney and is only if the power of attorney is not durable, but it is a way to terminate a power of attorney.
Ohio law has some circumstances that cause an agent’s authority to act under a power of attorney to be terminated and for powers of attorney to be terminated.
Nichole Y. Shafer is an Ohio-licensed attorney at Schroeder Law LTD in Putnam County. She limits her practice to business, real estate, estate planning and agriculture issues in northwest Ohio. She can be reached at [email protected] or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.
