Should We Simply Use the Suggested Statutory Financial Power of Attorney Form and the OSBA Suggested Advanced Directives Forms?

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1 Should We Simply Use the Suggested Statutory Financial Power of Attorney Form and the OSBA Suggested Advanced Directives Forms? Alan S. Acker Carlile Patchen & Murphy LLP 366 E. Broad Street Columbus, Ohio Forms of all types are commonly used by attorneys and with good reason good forms improve the quality of our work, they ensure consistency in our work from one client to another, they ensure that matters that should be addressed are addressed, and they eliminate the need to reinvent the wheel every time we want to draft a document for which a good form exists. With respect to financial powers of attorney, RC sets forth a suggested form for a statutory power of attorney (attached as Exhibit 1). With respect to advanced directives, that is, health care powers of attorney and living will declarations, the Ohio State Bar Association (OSBA) along with four health care organizations drafted suggested advanced directive forms for use by the public (attached as Exhibit 2). This paper discusses whether attorneys should use these forms without alteration in their practices. The quick answer is no. Ultimately, we, as the attorney, need to draft documents for our clients that are acceptable to us. It does not matter that many of our clients will not appreciate the time and skill that can go into the drafting of a good document; doing quality work is a badge of the professional and it is sufficient if only professionals can recognize such quality. As a result, no particular rule of drafting or of writing is absolute and we must draft our documents that appear best to us. Some comments are in order regarding these forms in general and a comment is in order for the advanced directive forms in particular. As to these forms in general, these forms are written for a wide audience and, as a result, the use of pronouns may not be appropriate for attorneys drafting these documents for specific clients. For example, where these forms may use the second-person pronoun (e.g., your), in documents drafted for a specific client, it may be better to use the first-person pronoun (e.g., my). This depends on one s frame of reference is the document being written to the client or being written by the client. Additionally, these forms set forth alternative provisions because the form cannot know what choices may be made by any particular user of the form, but the attorney knows what choices the client has made and does not need to set forth alternative choices. For example, in the left-hand column below is the language in the statutory suggested financial power of attorney form under Important Information as it is written in the second person and without knowing the choices made, and in the right-hand column below is how such language may be set forth for a particular client. This power of attorney authorizes another person (your agent) to make decisions concerning your property for you (the principal). Your agent will be able to make decisions and act with respect to your property I understand that this power of attorney authorizes another person (my agent) to make decisions concerning my property for me (the principal). My agent will be able to make decisions and act with respect to my property

2 (including your money) whether or not you are able to act for yourself. The meaning of authority over subjects listed on this form is explained in the Uniform Power of Attorney Act (sections to of the Revised Code). This power of attorney does not authorize the agent to make health-care decisions for you. You should select someone you trust to serve as your agent. Unless you specify otherwise, generally the agent's authority will continue until you die or revoke the power of attorney or the agent resigns or is unable to act for you. Your agent is entitled to reasonable compensation unless you state otherwise in the Special Instructions. This form provides for designation of one agent. If you wish to name more than one agent you may name a coagent in the Special Instructions. Coagents are not required to act together unless you include that requirement in the Special Instructions. If your agent is unable or unwilling to act for you, your power of attorney will end unless you have named a successor agent. You may also name a second successor agent. This power of attorney becomes effective immediately unless you state otherwise in the Special Instructions. (including my money) whether or not I am able to act for myself. The meaning of authority over subjects listed on this form is explained in the Uniform Power of Attorney Act (sections to of the Revised Code). This power of attorney does not authorize the agent to make health-care decisions for me. I have selected someone I trust to serve as my agent. Unless I specify otherwise, generally the agent's authority will continue until I die or revoke the power of attorney or the agent resigns or is unable to act for me. My agent is entitled to reasonable compensation unless I state otherwise in the Special Instructions. [NOTE: The attorney should know if it is stated otherwise.] This form provides for designation of one agent. If you wish to name more than one agent you may name a coagent in the Special Instructions. Coagents are not required to act together unless you include that requirement in the Special Instructions. [NOTE: This paragraph should be altered or deleted to match the actual document.] If my agent is unable or unwilling to act for me, this power of attorney will end [unless you have named a successor agent. You may also name a second successor agent. NOTE: This portion should be modified accordingly to match the actual document.] This power of attorney becomes effective immediately unless you state otherwise in the Special Instructions. [NOTE: This paragraph should be altered to match the actual document.] Thus, slavishly following the form can make it seem to your client that you don t know what your client wanted and that you simply filled in blanks on a form; something that your client, no doubt, will believe he could have done just as simply. Should We Simply Use the Suggested Statutory Financial Power of Attorney Form and the OSBA Suggested Advanced Directives Forms? Health Care Power of Attorney PAGE 2 OF 9 Page One of Twelve

3 With respect to these forms in general, all of the suggested forms contain explanatory materials or directions to aid the principal or the declarant on the use of these forms. Such provisions are logical and sensible when these forms are viewed as potential tools for the general public who might not have the benefit of counsel in aiding them in the meaning and consequences of these documents. However, such language is not needed when we are preparing these documents for our clients. For example, the powers of attorney forms provide for the possibility of naming successor agents. But, if there are not to be successor agents, then why have these sections in your documents? Similarly, all explanatory language for the intended user should be deleted, especially the sentence that reads, If you have questions about the power of attorney or the authority you are granting to your agent, you should seek legal advice before signing this form. These forms also set forth alternate choices for the user to choose from, either initialing the choice made or crossing out the choices not made or some other indication of identifying the choice made. Similarly, these forms are likely to have provisions that will not apply to a particular client of ours. Again, this makes complete sense as a form available to the general public, but makes no sense when we are drafting a document for a particular client. There is no reason to draft alternate choices or unnecessary provisions just so our client can cross out the options or provisions that are not wanted. Would you ever draft provisions in a will or trust or any other document that don t apply, but could apply to other clients, just so your particular client could cross them out? In my opinion, this is simply poor and lazy drafting. With respect to the advanced directive forms offered by the OSBA specifically, I have heard the lame excuse that we should simply fill in the blanks in the form and crossing out inapplicable provisions because doctors, hospital administrators, and health care workers want and expect to see all those logos at the bottom of the front page so that they know what they have. This excuse is premised on the foundation that all health care professionals either are too lazy or too busy to read a patient s advanced directives and to note such information in their files and records. I assume that people who ascribe to this approach never have any special instructions in their advanced directives. I have never understood this reasoning. We certainly may and should largely follow the forms, but we, at the very least, should customize them to our individual client s needs. If we at least recognize that all forms are tools that should not be blindly or slavishly followed, but, rather, should be used as a tool to help us craft finely tuned documents for our clients, then we also should explore whether there are provisions that should be added into our financial and health care powers of attorney and living will declarations that are not in the forms. So, if nothing else, the professional should customize these documents to the specific needs of the client by switching from the second-person pronoun to the first-person pronoun where appropriate, modifying the language to reflect decisions and choices actually made, eliminating explanatory language or directions, and eliminating those provisions that do not apply to the particular client. Should We Simply Use the Suggested Statutory Financial Power of Attorney Form and the OSBA Suggested Advanced Directives Forms? Health Care Power of Attorney PAGE 3 OF 9 Page One of Twelve

4 With respect to the advanced directives, ORC provides that a printed form of durable power of attorney for health care that is sold or otherwise distributed in Ohio must include a notice as set forth in this section. The notice is poorly written, but cannot be altered. Similarly, ORC (C) and (D) requires certain language regarding anatomical gifts and a donor registry enrollment form be included with a printed form for a living will declaration. However, such otherwise required provisions are not required where an attorney has prepared the document. As a result, I will provide that the principal or the declarant has been represented by an attorney so that the document s validity will not come into question because of the absence of these otherwise (awkward) statutory provisions. Let us now examine the financial power of attorney and advanced directive forms and discuss whether additional changes to these specific forms should be made, whether that is to add provisions that are not a part of these forms or to modify or remove provisions that are a part of these forms. This paper is not intended to examine or comment upon every section, paragraph or word of the suggested forms, but, rather, largely will focus on those aspects that the author suggests should be modified or removed as well as on provisions that should be added to these forms. Financial Powers of Attorney In the statutorily suggested power of attorney form, under the section titled Designation of Agent, if two or more co-agents will be named, we need to set forth whether the co-agents must act together or independent of one another. ORC allows the naming of two or more persons to act as co-agents and provides that co-agents may act independent of one another unless the power of attorney otherwise provides. Even if co-agents can act independent of one another, I suggest that the attorney state this fact in the document so that the agents and third parties know this explicitly. In the statutorily suggested power of attorney form, under the section titled General Grant of Authority, the principal is to initial each authority the principal wishes to grant to the agent, with the ability to simply initial all of the above if the principal wishes to grant to the agent authority for all matters listed. For the financial power of attorney drafted by an attorney, there is no need to have the client cross out any powers not granted to the agent. Simply do not include them in the list of powers given to the agent. Likewise, there is no reason to have the client initial any powers. An attorneycreated document simply should set forth the powers and authority that the principal is giving to the agent. As an aside, a potential problem with having clients initial the powers given to the agent is that invariably someone will fail to initial any item and then we will be left with a power of attorney that does not seem to give any authority to the agent. The above applies to any hot powers set forth in the section titled Action Requiring Express Authority that the client wishes to give to the agent. If the client wishes to grant the agent these additional powers, the attorney-drafted documents should simply state only those hot powers given and no initialing is required. When I grant any hot powers to the agent, I begin with the following paragraph: Should We Simply Use the Suggested Statutory Financial Power of Attorney Form and the OSBA Suggested Advanced Directives Forms? Health Care Power of Attorney PAGE 4 OF 9 Page One of Twelve

5 Additional Specific Powers. In addition to the powers given to my Agent above, [referencing the general powers given to the agent] I also authorize my Agent to act as my agent with respect to the matters that are set forth below. However, my Agent will not exercise any authority granted below if my Agent believes that such exercise would be detrimental to my economic welfare or considered to be in discharge of a legal obligation of my Agent, unless the prior approval of a court of competent jurisdiction is obtained. This shall not require my Agent to obtain approval of a court before my Agent exercises any authority granted below if my Agent is reasonably satisfied that such action will not be detrimental to my economic welfare or considered to be a discharge of a legal obligation of my Agent. In the statutorily suggested power of attorney form, the section titled Limitations on Agent s Authority should be changed to fit the reality. In many instances, the agent will be an ancestor, spouse or descendant of the principal and, thus, the limitation expressed in this section will not apply. But the draftsman will know (1) whether the agent is not so related, and (2) whether the principal wishes to override this limitation, and, so, the draftsman should craft the power to accomplish the client s wishes. If the agent and, if applicable, all successor agents are either an ancestor, spouse or descendant of the principal, then this provision is surplusage and should not appear in the document. The section titled Special Instructions should only be used if there actually are special instructions. And if your client has special instructions, then the word optional should be deleted. The same is true with respect to the section titled Nomination of Guardians. The above discussion deals only with what is found in the suggested statutory form itself. But are there provisions not found in the form that we should consider adding? I suggest that, where applicable, the answer is yes and below I discuss provisions that I often add to my financial powers of attorney. I like to state explicitly that the current financial power of attorney revokes all prior such powers and my language typically will read as follows: Revocation of Earlier Financial Powers of Attorney. I hereby revoke all earlier financial powers of attorney that I may have granted. I understand that if any earlier financial power of attorney has been recorded in the office of a county recorder, this revocation may not be effective unless it also is recorded in the same county recorder office. This provision will not revoke any health care power of attorney. I like to set forth the general duties and obligations of the agent in my financial power of attorney so that the agent understands the obligations being assumed. Some of these are found in ORC My language typically reads as follows: General Duties of My Agent. At all times, my Agent must act in accordance with my instructions or reasonable expectations actually known by my Agent and, otherwise, in my Should We Simply Use the Suggested Statutory Financial Power of Attorney Form and the OSBA Suggested Advanced Directives Forms? Health Care Power of Attorney PAGE 5 OF 9 Page One of Twelve

6 best interests. Additionally, whenever exercising any authority granted under this instrument, my Agent shall always act as required by law, including the following: act in good faith; act loyally for my benefit; act only within the scope of authority granted in this instrument; act with care, competence, and diligence in all matters; and act always to attempt to preserve my estate plan to the extent actually known by my Agent if preserving my estate plan is consistent with my best interests based on all relevant factors. Relevant factors will include, but not necessarily be limited to, the nature and value of my property, my foreseeable obligations and maintenance needs, the minimization of all taxes, and my eligibility for benefits under any statute or regulation. Unless otherwise specifically provided, my Agent will have no affirmative duty to act, will have no duty to diversify or to prudently manage my assets or have any duties other than those set forth above. If the agent is to have authority to make gifts, we must consider the breadth of such authority. Can the agent make gifts in excess of the annual exclusion limits of IRC 2503? Are gifts to pay life insurance premiums expected? Can gifts be made in trust or pursuant to a Uniform Transfers to Minors Act? An example of such language may be as follows: Gifts. To make gifts including qualified transfers defined under Section 2503(e) of the Internal Revenue Code or any successor provision thereto, that my Agent believes is consistent with my dispositive wishes or upon the advice of legal counsel is beneficial for tax purposes or for the anticipated administration of my estate, on my behalf to or for the benefit of one or more of my Spouse, my descendants, and the spouse of any such descendant, with no duty of equalization. Notwithstanding, any gifts made to my descendants or the spouse of any descendant will not exceed the amount equal to twice the annual exclusion amount set forth in Section 2503(b) of the Internal Revenue Code or any successor provision thereto. In addition, my Agent is authorized to make gifts to the owner of each life insurance policy that insures my life or the lives of my Spouse and me, in an amount necessary to permit the owner thereof to pay in a timely fashion all premiums due thereon each year. My Agent can make gifts to each donee or donees either outright or in trust. In the case of a gift to a minor, such gift may be made in trust or in accordance with any Uniform Transfers to Minors Act. In the case of a gift made in trust, my Agent may execute a deed of trust for such purpose, designating one or more persons (including my Agent) as original or successor trustee, or may make additions to an existing trust. I like to have a provision requiring the agent to maintain records and to provide accountings. A problem that I have seen with financial powers of attorney is when one child is the agent and refuses to inform his or her siblings what is happening with mom s or dad s money. This is to Should We Simply Use the Suggested Statutory Financial Power of Attorney Form and the OSBA Suggested Advanced Directives Forms? Health Care Power of Attorney PAGE 6 OF 9 Page One of Twelve

7 override ORC (H) which provides that generally an agent is not required to disclose unless ordered by a court or requested by the principal or other persons with authority to act for or in behalf of the principal. My language typically reads as follows: Obligation to Maintain Records and Provide Accountings. My Agent will maintain records and reasonable supporting documentation regarding actions taken and will provide an accounting in reasonable detail and accompanied by reasonable supporting documentation as I or any person interested in my welfare may request. Any person related to me by blood, adoption or marriage will be considered a person interested in my welfare. I or any person interested in my welfare may maintain an action to compel an accounting by my Agent in the [County] Ohio Probate Court or in any appropriate court in the county where I or my Agent resides. In addition to the above provisions, I typically add provisions addressing the agent s authority: to access documents such as the principal s will, trusts, life insurance policies, etc.; to deal with digital assets such as Facebook and LinkedIn as well as online bank and brokerage accounts, and to obtain passwords and access codes; to not have authority over foreign accounts to protect the agent from ignorantly violating tax reporting requirements; to waive privileges such as attorney-client or physician-patient; to obtain personal health information; to be reasonably compensated; to take actions to enforce the power of attorney; and to self-deal or not to self-deal. Further, I typically have provisions that exonerate the agent for its actions and decisions except for willful misconduct or gross negligence as well as exonerating third parties who act upon the agent s instructions. I typically indicate that the power is intended to apply everywhere and that the principal retains the right to amend or revoke the document. Health Care Powers of Attorney First, I delete all provisions that will not apply to my particular client. For example, if no alternate agents will be named, then I will delete the applicable portions. Also, if my client is not pregnant and will not become pregnant, then I delete the second paragraph under the section titled, Limitations on Agent s Authority. I also delete references to sections of the Ohio Revised Code. Near the beginning of the health care power of attorney form is a section (Definitions) setting forth particular words or phrases and defining them. This makes perfect sense for a form that may be obtained by the general public and so the drafters of the forms cannot know the level of sophistication or understanding of the potential users. However, where we, as attorneys, draft a health care power of attorney for our clients, (1) we can assess their understanding of the defined terms, (2) we can discuss these terms with our clients, and (3) the client can ask questions as to the meaning of any term. Notwithstanding, there are terms relating to health care that I often include in my health care powers of attorney so that the client as well as any others reading the document will know what was intended. But even here, I often limit this to the terms of comfort care, life sustaining treatment, permanently unconscious state, and terminal condition, Should We Simply Use the Suggested Statutory Financial Power of Attorney Form and the OSBA Suggested Advanced Directives Forms? Health Care Power of Attorney PAGE 7 OF 9 Page One of Twelve

8 while customizing such definitions to the first person. Thus, the definitions for these terms will read as follows [emphasis added]: Comfort care means any measure, medical or nursing procedure, treatment or intervention, including nutrition and/or hydration, that is taken to diminish my pain or discomfort, but not to postpone death. Life-sustaining treatment means any medical procedure, treatment, intervention or other measure that, when administered to me, mainly prolongs the process of dying. Permanently unconscious state means an irreversible condition in which I am permanently unaware of myself and surroundings. At least two physicians must examine me and agree that I have totally lost higher brain function and am unable to suffer or feel pain. Terminal condition means an irreversible, incurable, and untreatable condition caused by disease, illness, or injury from which, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by my attending physician and one other physician who has examined me, both of the following apply: (1) there can be no recovery and (2) death is likely to occur within a relatively short time if lifesustaining treatment is not administered. I modify the section titled, Authority of Agent, to fit the actual result wanted by my client. If no powers are to be removed, I do not begin the paragraph with the phrase Except for those items I have crossed out and. If there are powers that my client does not want to give to the agent, then I modify the provision accordingly, expressly setting forth what authority is not granted. When I authorize the agent to have authority to obtain protected health information, I add the following language: I authorize and request any physician, dentist, health care professional, health care provider, pharmacy, hospital, clinic, laboratory and other medical care facility to provide to any designated agent in this document information relating to my physical and mental condition, without limitation, and the diagnosis, prognosis, care, and treatment thereof upon the request of any agent I have designated in this document. I intend by this authorization for my designated agent to be considered a personal representative under privacy regulations related to protected health information and for my designated agent to be entitled to all health information in the same manner as if I personally were making the request. I understand that the disclosure of protected health information to my agent carries the potential that such information may no longer be protected by federal confidentiality rules. This authorization and request also shall be considered my consent to the release of such information under current laws, rules, and regulations as well as under future laws, rules, and regulations and amendments to such laws, rules, and regulations to include but not be limited to the express grant of authority to personal representatives as provided by Should We Simply Use the Suggested Statutory Financial Power of Attorney Form and the OSBA Suggested Advanced Directives Forms? Health Care Power of Attorney PAGE 8 OF 9 Page One of Twelve

9 Regulation Section (g) of Title 45 of the Code of Federal Regulations and the medical information privacy law and regulations generally referred to as HIPAA. While this may violate my general rule of not including unnecessary language, no rule is absolute and I prefer to let health care professionals feel greater comfort in releasing protected health information. Lastly, with respect to the execution requirements for health care powers of attorney, I often will have the client s signing of the document notarized. As a result, I remove the provisions dealing with the witnessing of the client s signing. While some may contend that it is best to have these documents witnessed and notarized, I do not subscribe to such approach and cannot find the logic to it. The law clearly provides that the document can be witnessed or notarized and I am quite comfortable doing one or the other, but see no need to do both. Living Will Declarations My changes with respect to living will declarations are the same as the changes that I make to my durable powers of attorney of health care where appropriate. Just as with the health care power of attorney, I delete all provisions that will not apply to my particular client and I set forth only those terms relating to health care that I feel are beneficial. Likewise, with respect to the execution requirements, I provide only for witnesses or a notary public, but not both. I also do not include the provisions otherwise required by ORC (C), relating to the making of anatomical gifts. While the provision required by (C) specifically states that it is optional, by the virtue of the statute, such language must be a part of a pre-printed form and if the declarant does not wish to use such provision, presumably the declarant must cross it out. I also do not include a donor registration enrollment form otherwise required by ORC (D) unless my client wants to make an anatomical gift for research or education. Where my client does want to make anatomical gift but only for transplantation or therapy, then I advise my client to designate such desire on his or her drivers license. Pursuant to ORC (F), if a document of gift specifies only a general intent to make an anatomical gift by words such as donor, organ donor, or body donor, or by a symbol or statement of similar import, the gift shall be used only for transplantation or therapy. Thus, a symbol on the client s drivers license indicating that the client is an organ donor will only be an anatomical gift for the purposes of transplantation and therapy. Conclusion Forms are wonderful tools for lawyers. But they are only tools and tools are only as good as the craftsman who employs them. Should We Simply Use the Suggested Statutory Financial Power of Attorney Form and the OSBA Suggested Advanced Directives Forms? Health Care Power of Attorney PAGE 9 OF 9 Page One of Twelve

10 EXHIBIT 1 Sec A document substantially in the following form may be used to create a statutory form power of attorney that has the meaning and effect prescribed by sections to of the Revised Code. [INSERT NAME OF JURISDICTION] STATUTORY FORM POWER OF ATTORNEY IMPORTANT INFORMATION This power of attorney authorizes another person (your agent) to make decisions concerning your property for you (the principal). Your agent will be able to make decisions and act with respect to your property (including your money) whether or not you are able to act for yourself. The meaning of authority over subjects listed on this form is explained in the Uniform Power of Attorney Act (sections to of the Revised Code). you. This power of attorney does not authorize the agent to make health-care decisions for You should select someone you trust to serve as your agent. Unless you specify otherwise, generally the agent's authority will continue until you die or revoke the power of attorney or the agent resigns or is unable to act for you. Your agent is entitled to reasonable compensation unless you state otherwise in the Special Instructions. This form provides for designation of one agent. If you wish to name more than one agent you may name a coagent in the Special Instructions. Coagents are not required to act together unless you include that requirement in the Special Instructions. If your agent is unable or unwilling to act for you, your power of attorney will end unless you have named a successor agent. You may also name a second successor agent. This power of attorney becomes effective immediately unless you state otherwise in the Special Instructions. ACTIONS REQUIRING EXPRESS AUTHORITY Unless expressly authorized and initialed by me in the Special Instructions, this power of attorney does not grant authority to my agent to do any of the following: (1) Create a trust; STATUTORILY SUGGESTED FINANCIAL POWER OF ATTORNEY PAGE 1 OF 6

11 (2) Amend, revoke, or terminate an inter vivos trust, even if specific authority to do so is granted to the agent in the trust agreement; (3) Make a gift; (4) Create or change rights of survivorship; (5) Create or change a beneficiary designation; (6) Delegate authority granted under the power of attorney; (7) Waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; (8) Exercise fiduciary powers that the principal has authority to delegate. CAUTION: Granting any of the above eight powers will give your agent the authority to take actions that could significantly reduce your property or change how your property is distributed at your death. If you have questions about the power of attorney or the authority you are granting to your agent, you should seek legal advice before signing this form. DESIGNATION OF AGENT I,... (Name of Principal) name the following person as my agent: Name of Agent: Agent's Address: Agent's Telephone Number: DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL) If my agent is unable or unwilling to act for me, I name as my successor agent: Name of Successor Agent: Successor Agent's Address: Successor Agent's Telephone Number: agent: If my successor agent is unable or unwilling to act for me, I name as my second successor Name of Second Successor Agent: Second Successor Agent's Address: STATUTORILY SUGGESTED FINANCIAL POWER OF ATTORNEY PAGE 2 OF 6 Health Care Power of Attorney Page One of Twelve

12 Second Successor Agent's Telephone Number: GRANT OF GENERAL AUTHORITY I grant my agent and any successor agent general authority to act for me with respect to the following subjects as defined in the Uniform Power of Attorney Act (sections to of the Revised Code): (INITIAL each subject you want to include in the agent's general authority. If you wish to grant general authority over all of the subjects you may initial "All Preceding Subjects" instead of initialing each subject.) (...) Real Property (...) Tangible Personal Property (...) Stocks and Bonds (...) Commodities and Options (...) Banks and Other Financial Institutions (...) Operation of Entity or Business (...) Insurance and Annuities (...) Estates, Trusts, and Other Beneficial Interests (...) Claims and Litigation (...) Personal and Family Maintenance (...) Benefits from Governmental Programs or Civil or Military Service (...) Retirement Plans (...) Taxes (...) All Preceding Subjects LIMITATION ON AGENT'S AUTHORITY An agent that is not my ancestor, spouse, or descendant MAY NOT use my property to benefit the agent or a person to whom the agent owes an obligation of support unless I have included that authority in the Special Instructions. SPECIAL INSTRUCTIONS (OPTIONAL) You may give special instructions on the following lines: EFFECTIVE DATE STATUTORILY SUGGESTED FINANCIAL POWER OF ATTORNEY PAGE 3 OF 6 Health Care Power of Attorney Page One of Twelve

13 This power of attorney is effective immediately unless I have stated otherwise in the Special Instructions. NOMINATION OF GUARDIAN (OPTIONAL) If it becomes necessary for a court to appoint a guardian of my estate or my person, I nominate the following person(s) for appointment: Name of Nominee for guardian of my estate: Nominee's Address: Nominee's Telephone Number: Name of Nominee for guardian of my person: Nominee's Address: Nominee's Telephone Number: RELIANCE ON THIS POWER OF ATTORNEY Any person, including my agent, may rely upon the validity of this power of attorney or a copy of it unless that person knows it has terminated or is invalid. SIGNATURE AND ACKNOWLEDGMENT Your Signature Date Your Name Printed Your Address Your Telephone Number State of Ohio County of... This document was acknowledged before me on... (Date), by... (Name of Principal).... STATUTORILY SUGGESTED FINANCIAL POWER OF ATTORNEY PAGE 4 OF 6 Health Care Power of Attorney Page One of Twelve

14 Signature of Notary My commission expires: This document prepared by: IMPORTANT INFORMATION FOR AGENT Agent's Duties When you accept the authority granted under this power of attorney, a special legal relationship is created between you and the principal. This relationship imposes upon you legal duties that continue until you resign or the power of attorney is terminated or revoked. You must: (1) Do what you know the principal reasonably expects you to do with the principal's property or, if you do not know the principal's expectations, act in the principal's best interest; (2) Act in good faith; (3) Do nothing beyond the authority granted in this power of attorney; (4) Attempt to preserve the principal's estate plan if you know the plan and preserving the plan is consistent with the principal's best interest; (5) Disclose your identity as an agent whenever you act for the principal by writing or printing the name of the principal and signing your own name as "agent" in the following manner: (Principal's Name) by (Your Signature) as Agent Unless the Special Instructions in this power of attorney state otherwise, you must also: (1) Act loyally for the principal's benefit; (2) Avoid conflicts that would impair your ability to act in the principal's best interest; (3) Act with care, competence, and diligence; (4) Keep a record of all receipts, disbursements, and transactions made on behalf of the principal; (5) Cooperate with any person that has authority to make health-care decisions for the principal to do what you know the principal reasonably expects or, if you do not know the principal's expectations, to act in the principal's best interest. Termination of Agent's Authority You must stop acting on behalf of the principal if you learn of any event that terminates this power of attorney or your authority under this power of attorney. Events that terminate a power of attorney or your authority to act under a power of attorney include: (1) The death of the principal; (2) The principal's revocation of the power of attorney or your authority; (3) The occurrence of a termination event stated in the power of attorney; STATUTORILY SUGGESTED FINANCIAL POWER OF ATTORNEY PAGE 5 OF 6 Health Care Power of Attorney Page One of Twelve

15 (4) The purpose of the power of attorney is fully accomplished; (5) If you are married to the principal, a legal action is filed with a court to end your marriage, or for your legal separation, unless the Special Instructions in this power of attorney state that such an action will not terminate your authority. Liability of Agent The meaning of the authority granted to you is defined in the Uniform Power of Attorney Act (sections to of the Revised Code). If you violate the Uniform Power of Attorney Act or act outside the authority granted, you may be liable for any damages caused by your violation. If there is anything about this document or your duties that you do not understand, you should seek legal advice. STATUTORILY SUGGESTED FINANCIAL POWER OF ATTORNEY PAGE 6 OF 6 Health Care Power of Attorney Page One of Twelve

16 EXHIBIT 2 State of Ohio Advance Directives: Health Care Power of Attorney Living Will Declaration I have completed a Health Care Power of Attorney: Yes No. I have added special notes to my Health Care Power of Attorney: Yes No. I have included Nomination of Guardian(s) on my Health Care Power of Attorney: Yes No. I have completed a Living Will Declaration: I have added special instructions to my Living Will Declaration: Yes No. Yes No. [NOTE: Whenever you sign a new advance directive document, it automatically will revoke prior similar documents unless you provide otherwise. [R.C and R.C (C)] [NOTE: If you make changes to an advance directive, remember to make similar changes to your other advance directives.] March 2015 Ohio State Bar Association

17 State of Ohio Health Care Power of Attorney [R.C. 1337] (Print Full Name) (Birth Date) This is my Health Care Power of Attorney. I revoke all prior Health Care Powers of Attorney signed by me. I understand the nature and purpose of this document. If any provision is found to be invalid or unenforceable, it will not affect the rest of this document. I understand that my agent can make health care decisions for me only whenever my attending physician has determined that I have lost the capacity to make informed health care decisions. However, this does not require or imply that a court must declare me incompetent. Definitions Adult means a person who is 18 years of age or older. Agent or attorney-in-fact means a competent adult who a person (the principal ) can name in a Health Care Power of Attorney to make health care decisions for the principal. Artificially or technologically supplied nutrition or hydration means food and fluids provided through intravenous or tube feedings. [You can refuse or discontinue a feeding tube or authorize your Health Care Power of Attorney agent to refuse or discontinue artificial nutrition or hydration.] Bond means an insurance policy issued to protect the ward s assets from theft or loss caused by the Guardian of the Estate s failure to properly perform his or her duties. Comfort care means any measure, medical or nursing procedure, treatment or intervention, including nutrition and/or hydration, that is taken to diminish a patient s pain or discomfort, but not to postpone death. CPR means cardiopulmonary resuscitation, one of several ways to start a person s breathing or heartbeat once either has stopped. It does not include clearing a person s airway for a reason other than resuscitation. Do Not Resuscitate or DNR Order means a physician s medical order that is written into a patient s record to indicate that the patient should not receive cardiopulmonary resuscitation. Ohio Health Care Power of Attorney Page One of Twelve

18 Guardian means the person appointed by a court through a legal procedure to make decisions for a ward. A Guardianship is established by such court appointment. Health care means any care, treatment, service or procedure to maintain, diagnose or treat an individual s physical or mental health. Health care decision means giving informed consent, refusing to give informed consent, or withdrawing informed consent to health care. Health Care Power of Attorney means a legal document that lets the principal authorize an agent to make health care decisions for the principal in most health care situations when the principal can no longer make such decisions. Also, the principal can authorize the agent to gather protected health information for and on behalf of the principal immediately or at any other time. A Health Care Power of Attorney is NOT a financial power of attorney. The Health Care Power of Attorney document also can be used to nominate person(s) to act as guardian of the principal's person or estate. Even if a court appoints a guardian for the principal, the Health Care Power of Attorney remains in effect unless the court rules otherwise. Life-sustaining treatment means any medical procedure, treatment, intervention or other measure that, when administered to a patient, mainly prolongs the process of dying. Living Will Declaration means a legal document that lets a competent adult ( declarant ) specify what health care the declarant wants or does not want when he or she becomes terminally ill or permanently unconscious and can no longer make his or her wishes known. It is NOT and does not replace a will, which is used to appoint an executor to manage a person s estate after death. Permanently unconscious state means an irreversible condition in which the patient is permanently unaware of himself or herself and surroundings. At least two physicians must examine the patient and agree that the patient has totally lost higher brain function and is unable to suffer or feel pain. Principal means a competent adult who signs a Health Care Power of Attorney. Terminal condition means an irreversible, incurable, and untreatable condition caused by disease, illness, or injury from which, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by a principal's attending physician and one other physician who has examined the principal, both of the following apply: (1) there can be no recovery and (2) death is likely to occur within a relatively short time if life-sustaining treatment is not administered. Ward means the person the court has determined to be incompetent. The ward s person, financial estate, or both, is protected by a guardian the court appoints and oversees. Ohio Health Care Power of Attorney Page Two of Twelve

19 X out area if not used Naming of My Agent. The person named below is my agent who will make health care decisions for me as authorized in this document. Agent s name and relationship: Address: Telephone number(s): By placing my initials, signature, check or other mark in this box, I specifically authorize my agent to obtain my protected health care information immediately and at any future time. Guidance to Agent. My agent will make health care decisions for me based on my instructions in this document and my wishes otherwise known to my agent. If my agent believes that my wishes conflict with what is in this document, this document will take precedence. If there are no instructions and if my wishes are unclear or unknown for any particular situation, my agent will determine my best interests after considering the benefits, the burdens and the risks that might result from a given decision. If no agent is available, this document will guide decisions about my health care. Naming of alternate agent(s). If my agent named above is not immediately available or is unwilling or unable to make decisions for me, then I name, in the following order of priority, the persons listed below as my alternate agents (cross out any unused lines): First alternate agent s name and relationship: Address: Telephone number(s): Second alternate agent s name and relationship: Address: Telephone number(s): Any person can rely on a statement by any alternate agent named above that he or she is properly acting under this document and such person does not have to make any further investigation or inquiry. Ohio Health Care Power of Attorney Page Three of Twelve

20 Authority of Agent. Except for those items I have crossed out and subject to any choices I have made in this Health Care Power of Attorney, my agent has full and complete authority to make all health care decisions for me. This authority includes, but is not limited to, the following: 1. To consent to the administration of pain-relieving drugs or treatment or procedures (including surgery) that my agent, upon medical advice, believes may provide comfort to me, even though such drugs, treatment or procedures may hasten my death. 2. If I am in a terminal condition and I do not have a Living Will Declaration that addresses treatment for such condition, to make decisions regarding life-sustaining treatment, including artificially or technologically supplied nutrition or hydration. 3. To give, withdraw or refuse to give informed consent to any health care procedure, treatment, interventions or other measure. 4. To request, review and receive any information, verbal or written, regarding my physical or mental condition, including, but not limited to, all my medical and health care records. 5. To consent to further disclosure of information and to disclose medical and related information concerning my condition and treatment to other persons. 6. To execute for me any releases or other documents that may be required in order to obtain medical and related information. 7. To execute consents, waivers and releases of liability for me and for my estate to all persons who comply with my agent s instructions and decisions. To indemnify and hold harmless, at my expense, any person who acts while relying on this Health Care Power of Attorney. I will be bound by such indemnity entered into by my agent. 8. To select, employ and discharge health care personnel and services providing home health care and the like. 9. To select, contract for my admission to, transfer me to or authorize my discharge from any medical or health care facility, including, but not limited to, hospitals, nursing homes, assisted living facilities, hospices, adult homes and the like. 10. To transport me or arrange for my transportation to a place where this Health Care Power of Attorney is honored, if I am in a place where the terms of this document are not enforced. 11. To complete and sign for me the following: Consents to health care treatment, or to the issuing of Do Not Resuscitate (DNR) Orders or other similar orders; and Requests to be transferred to another facility, to be discharged against health care advice, or other similar requests; and Any other document desirable or necessary to implement health care decisions that my agent is authorized to make pursuant to this document. Ohio Health Care Power of Attorney Page Four of Twelve

21 Special Instructions. [These instructions apply only if I DO NOT have an active Living Will Declaration.] By placing my initials, signature, check or other mark in this box, I specifically authorize my agent to refuse or, if treatment has started, to withdraw consent to, the provision of artificially or technologically supplied nutrition or hydration if I am in a permanently unconscious state AND my physician and at least one other physician who has examined me have determined, to a reasonable degree of medical certainty, that artificially or technologically supplied nutrition and hydration will not provide comfort to me or relieve my pain. [R.C (E)(2)(a) and (b)] Limitations of Agent s Authority. I understand there are limitations to the authority of my agent under Ohio law: 1. My agent does not have authority to refuse or withdraw informed consent to health care necessary to provide comfort care. 2. My agent does not have the authority to refuse or withdraw informed consent to health care if I am pregnant, if the refusal or withdrawal of the health care would terminate the pregnancy, unless the pregnancy or the health care would pose a substantial risk to my life, or unless my attending physician and at least one other physician to a reasonable degree of medical certainty determines that the fetus would not be born alive. 3. My agent cannot order the withdrawal of life-sustaining treatment, including artificially or technologically supplied nutrition or hydration, unless I am in a terminal condition or in a permanently unconscious state and two physicians have determined that life-sustaining treatment would not or would no longer provide comfort to me or alleviate my pain. 4. If I previously consented to any health care, my agent cannot withdraw that treatment unless my condition has significantly changed so that the health care is significantly less beneficial to me, or unless the health care is not achieving the purpose for which I chose the health care. Additional Instructions or Limitations. I may give additional instructions or impose additional limitations on the authority of my agent. Below are my specific instructions or limitations: [If the space below is not sufficient, you may attach additional pages. If you do not have any additional instructions or limitations, write None below.] Ohio Health Care Power of Attorney Page Five of Twelve