Revocation of Statutory Durable Power of Attorney for Health Care
STATUTORY REFERENCE
ALL REFERENCES ARE TO THE OHIO REVISED CODE
DURABLE POWER OF ATTORNEY FOR HEALTH CARE
(§§ 1337.11 to 1337.17)
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.
Each witness must subscribe the witness's signature on the durable
power of attorney for health care 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.
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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