REPORT OF THE ESTATE PLANNING, TRUST AND PROBATE LAW SECTION

Transcription

1 REPORT OF THE ESTATE PLANNING, TRUST AND PROBATE LAW SECTION To the Council of Delegates: The Estate Planning, Trust and Probate Law ( EPTPL ) Section hereby respectfully requests your favorable consideration of four legislative proposals, which may be summarized as follows: A. To amend Sections and of the Ohio Revised Code to facilitate (and ultimately require) the prompt deposit of wills in probate court. B. To amend Sections (A)(1) and (A)(1) of the Ohio Revised Code to enable a principal to authorize an agent for health care to access the principal s medical information before the principal is incapacitated. C. To amend Section (B) of the Ohio Revised to clarify that no attorney-in-fact or alternate attorney-in-fact designated in a durable power of attorney for health care may act as a witness to such power. D. To add a new division (E) to Section of the Ohio Revised Code to explicitly permit the nomination of a guardian for the principal under a health care power of attorney. Respectfully submitted, Kevin G. Robertson, Cleveland Chairman of the EPTPL Section Council PROPOSAL A: TO AMEND OHIO LAW TO FACILITATE (AND ULTIMATELY REQUIRE) THE PROMPT DEPOSIT OF WILLS IN PROBATE COURT Section of the Ohio Revised Code (ORC) currently provides for the deposit of a will in the office of the judge of the probate court in the county where the testator lives. To encourage such deposits for safekeeping, either before or after a testator s death, it is proposed that language be added to explicitly to allow for such deposits of wills before or after death. Further, recognizing that not all filings are for the purpose of probating the will, additional new language would specify that the mere deposit of a will does not require an application to probate the will. Many testators now use a revocable living trust agreement, for privacy and for avoidance of probate purposes, and in some instances surviving family members are not immediately aware of any probate assets. Encouraging the deposit of a decedent s will with the probate court without the necessity of probating the will (e.g., if there seem to be no assets requiring probate 35

2 administration) would help to minimize problems if stray probate property is later discovered. If decedent s will is filed on deposit for safekeeping, an application to probate the will (or release the estate from administration) readily could be filed if probate assets later were discovered. Such deposits of wills would avoid problems that otherwise sometimes occur if the surviving family members discard decedent s will because they erroneously believe that all of decedent s assets are passing outside of the probate estate. It is desirable to assure that a will filed for deposit only generally would not be a public record, an especially important consideration for wills filed for deposit prior to the testator s death, since a testator might well sign later wills (revoking a prior will on deposit ). Accordingly, new language is proposed at the end of the second paragraph of to ensure the privacy of wills filed on deposit only with a probate court until and unless a will is filed for probate, at which time it becomes public record. ORC now provides sanctions (in the form of disinheritance) if a beneficiary under a will intentionally conceals its existence and fails to file the will for probate within one year (recently reduced from three years) after testator s death. The Council believes that the statutory language of division (A) describing the results of such disinheritance should be clarified. No change is proposed to division (B) of ORC Deposit of will A will may be deposited by the testator, or by some person for the testator, in the office of the judge of the probate court in the county in which the testator lives, before or after the death of the testator, and if after the death of the testator, with or without applying for its probate. That will shall be safely kept until delivered or disposed of as provided by section of the Revised Code. The judge, on being paid the fee of five dollars, shall receive, keep, and give a certificate of deposit for the will. Every will that is so deposited shall be enclosed in a sealed envelope that shall be indorsed with the name of the testator. The judge shall indorse on the envelope the date of delivery and the person by whom the will was delivered. The envelope may be indorsed with the name of a person to whom it is to be delivered after the death of the testator. The will shall not be opened or read until delivered to a person entitled to receive it, until the testator files a complaint in the probate court for a declaratory judgment of the validity of the will pursuant to section of the Revised Code, or until otherwise disposed of as provided in section of the Revised Code. The deposited will shall not be a public record until such time as it is admitted to probate Effect of withholding will; will previously declared valid in another county; knowledge of beneficiary (A) No property or right, testate or intestate, shall pass to a beneficiary named in a will who knows of the existence of the will for one year after the death of the testator and has the power to 36

3 control it and, without reasonable cause, intentionally conceals or withholds it or neglects or refuses within that one year to cause it to be offered for or admitted to probate. The property devised or bequeathed to that beneficiary shall descend to the heirs of the testator, not including any heir who has concealed or withheld the will pass as if such beneficiary had predeceased the testator. (B) No property or right, testate or intestate, passes to a beneficiary named in a will when the will was declared valid and filed with a probate judge pursuant to Section of the Revised Code, the declaration and filing took place in a county different from the county in which the will of the testator would be probated under Section of the Revised Code, and the named beneficiary knew of the declaration and filing and of the death of the testator and did not notify the probate judge with whom the will was filed. This division does not preclude a named beneficiary from acquiring property or rights from the estate of the testator for failing to notify a probate judge if the named beneficiary reasonably believes that the judge has previously been notified of the testator s death. PROPOSAL B: TO AMEND OHIO LAW TO FACILITATE AUTHORIZATION OF A DESIGNATED AGENT TO HAVE IMMEDIATE ACCESS TO MEDICAL INFORMATION UNDER A HEALTH CARE POWER OF ATTORNEY The proposed statutory change to ORC (A) would allow the principal the option (but not the requirement) to make his or her health care power effective immediately solely for the purpose of allowing the designated agent to obtain health information, including health information that otherwise would not be accessible under HIPAA. Currently, Ohio law regarding health care powers of attorney provides that the agent may act only when the attending physician determines that the principal has lost the capacity to make informed health care decisions. While the Section believes that this is best with respect to the actual administration of health care, it presents an obstacle to the agent in obtaining health information about the principal. Under the regulations to HIPAA, an agent under a recognized health care power of attorney is entitled to receive health information without a separate HIPAA authorization. But, under current Ohio law, such an agent only becomes entitled to receive such information after a determination that the principal has lost the capacity to make informed health care decisions. Members of the EPTPL Section and other attorneys have indicated instances where agents have been denied access to health information and, thus, have been unable to fully aid the principal. The proposed statutory change to ORC (A) would operate to grant an agent the authority to obtain immediate access to a principal s health care information, if the principal duly authorized such immediate access pursuant to ORC (A). Thus, the amendment of division (A) of ORC would coordinate with the proposed amendment of division (A) of ORC

4 Formality of Execution (A)(1) An adult who is of sound mind voluntarily may create a valid durable power of attorney for health care by executing a durable power of attorney, in accordance with section of the Revised Code, that authorizes an attorney in fact as described in division (A)(2) of this section 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; provided, however that such adult may authorize the attorney in fact to have authority commencing immediately or at any subsequent time to obtain information regarding such adult s health, including protected health information, without the need for such adult to be found to have lost the capacity to make informed health care decisions. Except as otherwise provided in divisions (B) to (F) of section of the Revised Code, the authorization 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. Additionally, to be valid, a durable power of attorney for health care shall satisfy both of the following: (a) It shall be signed at the end of the instrument by the principal and shall state the date of its execution. (b) It shall be witnessed in accordance with division (B) of this section or be acknowledged by the principal in accordance with division (C) of this section Authority of attorney in fact under durable power of attorney for health care (A)(1) An attorney in fact under a durable power of attorney for health care shall make health care decisions for the principal only if the instrument substantially complies with section of the Revised Code and specifically authorizes the attorney in fact to make health care decisions for the principal, and only if the attending physician of the principal determines that the principal has lost the capacity to make informed health care decisions for the principal; provided, however, if authorized in the durable power of attorney for health care, the attorney in fact may have authority commencing immediately or at any subsequent time to obtain information regarding the principal s health, including protected health information, without the need for the principal to be found to have lost the capacity to make informed health care decisions. Except as otherwise provided in divisions (B) to (F) of this section and subject to any specific limitations in the instrument, the attorney in fact may make health care decisions for the principal to the same extent as the principal could make those decisions for the principal if the principal had the capacity to do so. Except as otherwise provided in divisions (B) to (F) of this section, in exercising that authority, the attorney in fact shall act consistently with the desires of the principal or, if the desires of the principal are unknown, shall act in the best interest of the principal. 38

5 PROPOSAL C: TO AMEND OHIO LAW TO CLARIFY THAT A DESIGNATED ALTERNATE AGENT MAY NOT ACT AS A WITNESS TO A HEALTH CARE POWER OF ATTORNEY This proposed statutory change would provide that a person designated as an agent or alternate agent cannot act as a witness to the health care power of attorney. Currently, ORC (B) provides that any person designated as the agent (as well as certain other persons) is ineligible to act as a witness to the execution of a health care power of attorney, but this prohibition does not apply explicitly to any person who may be designated as an alternate agent. Although many persons designated as an agent, including alternate agents, are related to the principal by blood, marriage or adoption, this need not always be so. The EPTPL Section believes that the legislative intent was not to allow any person who has an interest in the principal s health to act as a witness to the execution of a health care power of attorney. As a result, explicitly stating that any person designated as an agent or alternate agent cannot act as a witness is consistent with this intent Formality of Execution (B) If witnessed for purposes of division (A)(1)(b) of this section, a durable power of attorney for health care shall be witnessed by at least two individuals who are adults and who are not ineligible to be witnesses under this division. Any person who is related to the principal by blood, marriage, or adoption, any person who is designated as the attorney in fact or alternate 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 are ineligible to be witnesses. 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. 39

6 PROPOSAL D: TO AMEND OHIO LAW TO PERMIT NOMINATION OF A GUARDIAN UNDER A HEALTH CARE POWER OF ATTORNEY The proposed statutory change would allow the principal under a health care power of attorney the option (but not the requirement) to nominate a guardian for the principal. Currently, an individual may nominate a guardian under a financial power of attorney (ORC ), but no similar provision exists under the Ohio statutes governing health care powers of attorney. The EPTPL Section believes that an individual should be able to nominate a guardian under either a financial power of attorney or a health care power of attorney. The proposed statutory language mirrors the language in ORC under Ohio s recently enacted Uniform Power of Attorney Act Formality of Execution (E) In a durable power of attorney as described in division (A) of this section, a principal may nominate a guardian of the principal s person, estate or both. The nomination is for consideration by a court if proceedings for the appointment of a guardian for the principal s person, estate, or both are commenced at a later time. The principal may authorize the person nominated as guardian or the agent to nominate a successor guardian for consideration by the court. Except for good cause shown or disqualification, the court shall make its appointment in accordance with the principal s most recent nomination. The principal may direct that bond be waived for a person nominated as guardian or successor guardian. The power of attorney is not terminated and the agent s authority continues unless limited, suspended, or terminated by the court after notice to the agent and upon a finding that the limitation, suspension, or termination would be in the best interest of the principal. The durable power of attorney as described in division (A) of this section that contains the nomination of a person to be the guardian of the person or estate or both of the principal under this division may be filed with the probate court for safekeeping, and the probate court shall designate the nomination as the nomination of a standby guardian. 40