A power of attorney (POA) is the "express authority, given by a principal to an agent or attorney, allowing them to perform an action on the behalf of the principal."[1] A general POA can be issued to any agent or attorney, allowing them to act as they see fit, while a special or limited POA only allows for certain actions and situations. Understanding the difference can be critical, when dealing with someone who purports to hold a valid POA.
A POA, whether general or limited, requires two parties: the principal and the agent. Ohio's version[2] of the Uniform Power of Attorney Act (UPOAA), effective March 22, 2012, changed the law governing POAs. Ohio defines the "agent" as a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney in fact, or otherwise. "Agent" includes an original agent, co-agent, successor agent, and a person to which an agent's authority is delegated; while "principal" is defined as "an individual who grants authority to an agent in a power of attorney."[3]
Furthermore, in Ohio a POA must be signed by the principal or in the principal's conscious presence by another individual directed by the principal to sign the principal's name on the power of attorney. A signature on a power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments.[4]
Most people intend for a POA agent to handle their day-to-day affairs, but not to make changes to their estate plan. Recognizing this, UPOAA prohibits agents from performing certain acts unless the POA specifically authorizes them. Because many POA documents give significant, far-reaching powers to another person, they should be granted only after careful consideration, and relied upon only after reviewing the POA document.
In Ohio[5] , absent wording to the contrary, a POA shall do all of the following:
Additionally, an Ohio POA, absent terms contrary, shall do all of the following:
The principal determines the scope of the agent’s authority. However, Ohio law now says that unless the powers are specifically granted, an agent cannot do the following:
Such powers are the types most likely to be abused. Because some of these powers can potentially be abused, it is critical prior to acquiescing to the acts of a POA to "trust but verify", meaning obtain a copy of the POA first.
Because a POA can be limited to one specific act or power, or a few, rather than general, it is also critical that the POA document be produced prior to relying on representations of authority.
When in doubt that certain powers exist, or when suspect that certain powers are being abused, especially in cases where the principal is elderly, Ohio law now recognizes a number of individuals who may file a motion asking the probate court to review the agent’s actions. However, if the principal asks the court to dismiss such a motion, then the court must dismiss it, unless the court finds that the principal is incapacitated.
Also note that a POA can be and often is revocable. A principal can always change or revoke (cancel) his or her POA. It is recommended this be done in writing, with a copy filed with the County Recorder, and perhaps provided to known financial institutions of the principal. Simply destroying the original document is not enough.