|
|
To amend sections 1337.092, 1337.12, 2101.24, | 1 |
2109.21, 2111.02, 2111.12, 2111.121, 5301.071, | 2 |
5747.02, 5801.10, 5804.11, 5804.12, 5808.02, | 3 |
5808.14, 5808.17, 5810.09, and 5810.13; to enact | 4 |
new section 2107.52 and sections 1337.21 to | 5 |
1337.64, 3793.31 to 3793.39, 5808.18, 5808.19, | 6 |
5809.031, and 5810.14; and to repeal sections | 7 |
1337.09, 1337.091, 1337.093, 1337.18, 1337.19, | 8 |
1337.20, and 2107.52 of the Revised Code to adopt | 9 |
the Uniform Power of Attorney Act; to modify a | 10 |
trustee's duties with respect to life insurance | 11 |
policies, specify a trustee's power to distribute | 12 |
trust principal in further trust, provide for the | 13 |
titling of assets in trust form, permit some but | 14 |
not all of specified parties to enter into a | 15 |
private settlement agreement, and make other | 16 |
changes in the Trust Code; to modify the | 17 |
anti-lapse provisions regarding wills and adopt | 18 |
anti-lapse provisions applicable to trusts; to | 19 |
provide a mechanism for a probate court to order a | 20 |
person who suffers from alcohol and other drug | 21 |
abuse to undergo treatment; and to provide a | 22 |
procedure for the construction or modification of | 23 |
a trust that refers to the federal estate tax, | 24 |
generation-skipping transfer tax, or Ohio estate | 25 |
tax. | 26 |
Section 1. That sections 1337.092, 1337.12, 2101.24, 2109.21, | 27 |
2111.02, 2111.12, 2111.121, 5301.071, 5747.02, 5801.10, 5804.11, | 28 |
5804.12, 5808.02, 5808.14, 5808.17, 5810.09, and 5810.13 be | 29 |
amended and new section 2107.52 and sections 1337.21, 1337.22, | 30 |
1337.23, 1337.24, 1337.25, 1337.26, 1337.27, 1337.28, 1337.29, | 31 |
1337.30, 1337.31, 1337.32, 1337.33, 1337.34, 1337.35, 1337.36, | 32 |
1337.37, 1337.38, 1337.39, 1337.40, 1337.41, 1337.42, 1337.43, | 33 |
1337.44, 1337.45, 1337.46, 1337.47, 1337.48, 1337.49, 1337.50, | 34 |
1337.51, 1337.52, 1337.53, 1337.54, 1337.55, 1337.56, 1337.57, | 35 |
1337.58, 1337.59, 1337.60, 1337.61, 1337.62, 1337.63, 1337.64, | 36 |
3793.31, 3793.32, 3793.33, 3793.34, 3793.35, 3793.36, 3793.37, | 37 |
3793.38, 3793.39, 5808.18, 5808.19, 5809.031, and 5810.14 of the | 38 |
Revised Code be enacted to read as follows: | 39 |
Sec. 1337.092. (A) If an attorney in fact enters into a | 40 |
contract in the representative capacity of the attorney in fact, | 41 |
if the contract is within the authority of the attorney in fact, | 42 |
and if the attorney in fact discloses in the contract that it is | 43 |
being entered into in the representative capacity of the attorney | 44 |
in fact, the attorney in fact is not personally liable on the | 45 |
contract, unless the contract otherwise specifies. If the words or | 46 |
initialism "attorney in fact," "as attorney in fact," "AIF," | 47 |
"power of attorney," "POA," or any other word or words or | 48 |
initialism indicating representative capacity as an attorney in | 49 |
fact are included in a contract following the name or signature of | 50 |
an attorney in fact, the inclusion is sufficient disclosure for | 51 |
purposes of this division that the contract is being entered into | 52 |
in the attorney in fact's representative capacity as attorney in | 53 |
fact. | 54 |
(B) An attorney in fact is not personally liable for a debt | 55 |
of the attorney in fact's principal, unless one or more of the | 56 |
following applies: | 57 |
(1) The attorney in fact agrees to be personally responsible | 58 |
for the debt. | 59 |
(2) The debt was incurred for the support of the principal, | 60 |
and the attorney in fact is liable for that debt because of | 61 |
another legal relationship that gives rise to or results in a duty | 62 |
of support relative to the principal. | 63 |
(3) The negligence of the attorney in fact gave rise to or | 64 |
resulted in the debt. | 65 |
(4) An act of the attorney in fact that was beyond the | 66 |
attorney in fact's authority gave rise to or resulted in the debt. | 67 |
(5) An agreement to assist in the recovery of funds under | 68 |
section 169.13 of the Revised Code was the subject of the power of | 69 |
attorney that gave rise to or resulted in the debt. | 70 |
(C) This section applies but is not limited to, and the terms | 71 |
"power of attorney" and "attorney in fact" include but are not | 72 |
limited to, an agency agreement and an agent under an agency | 73 |
agreement. | 74 |
Sec. 1337.12. (A)(1) An adult who is of sound mind | 75 |
voluntarily may create a valid durable power of attorney for | 76 |
health care by executing a durable power of attorney, in | 77 |
accordance with | 78 |
Revised Code, that authorizes an attorney in fact as described in | 79 |
division (A)(2) of this section to make health care decisions for | 80 |
the principal at any time that the attending physician of the | 81 |
principal determines that the principal has lost the capacity to | 82 |
make informed health care decisions for the principal. Except as | 83 |
otherwise provided in divisions (B) to (F) of section 1337.13 of | 84 |
the Revised Code, the authorization may include the right to give | 85 |
informed consent, to refuse to give informed consent, or to | 86 |
withdraw informed consent to any health care that is being or | 87 |
could be provided to the principal. Additionally, to be valid, a | 88 |
durable power of attorney for health care shall satisfy both of | 89 |
the following: | 90 |
(a) It shall be signed at the end of the instrument by the | 91 |
principal and shall state the date of its execution. | 92 |
(b) It shall be witnessed in accordance with division (B) of | 93 |
this section or be acknowledged by the principal in accordance | 94 |
with division (C) of this section. | 95 |
(2) Except as otherwise provided in this division, a durable | 96 |
power of attorney for health care may designate any competent | 97 |
adult as the attorney in fact. The attending physician of the | 98 |
principal and an administrator of any nursing home in which the | 99 |
principal is receiving care shall not be designated as an attorney | 100 |
in fact in, or act as an attorney in fact pursuant to, a durable | 101 |
power of attorney for health care. An employee or agent of the | 102 |
attending physician of the principal and an employee or agent of | 103 |
any health care facility in which the principal is being treated | 104 |
shall not be designated as an attorney in fact in, or act as an | 105 |
attorney in fact pursuant to, a durable power of attorney for | 106 |
health care, except that these limitations do not preclude a | 107 |
principal from designating either type of employee or agent as the | 108 |
principal's attorney in fact if the individual is a competent | 109 |
adult and related to the principal by blood, marriage, or | 110 |
adoption, or if the individual is a competent adult and the | 111 |
principal and the individual are members of the same religious | 112 |
order. | 113 |
(3) A durable power of attorney for health care shall not | 114 |
expire, unless the principal specifies an expiration date in the | 115 |
instrument. However, when a durable power of attorney contains an | 116 |
expiration date, if the principal lacks the capacity to make | 117 |
informed health care decisions for the principal on the expiration | 118 |
date, the instrument shall continue in effect until the principal | 119 |
regains the capacity to make informed health care decisions for | 120 |
the principal. | 121 |
(B) If witnessed for purposes of division (A)(1)(b) of this | 122 |
section, a durable power of attorney for health care shall be | 123 |
witnessed by at least two individuals who are adults and who are | 124 |
not ineligible to be witnesses under this division. Any person who | 125 |
is related to the principal by blood, marriage, or adoption, any | 126 |
person who is designated as the attorney in fact in the | 127 |
instrument, the attending physician of the principal, and the | 128 |
administrator of any nursing home in which the principal is | 129 |
receiving care are ineligible to be witnesses. | 130 |
The witnessing of a durable power of attorney for health care | 131 |
shall involve the principal signing, or acknowledging the | 132 |
principal's signature, at the end of the instrument in the | 133 |
presence of each witness. Then, each witness shall subscribe the | 134 |
witness's signature after the signature of the principal and, by | 135 |
doing so, attest to the witness's belief that the principal | 136 |
appears to be of sound mind and not under or subject to duress, | 137 |
fraud, or undue influence. The signatures of the principal and the | 138 |
witnesses under this division are not required to appear on the | 139 |
same page of the instrument. | 140 |
(C) If acknowledged for purposes of division (A)(1)(b) of | 141 |
this section, a durable power of attorney for health care shall be | 142 |
acknowledged before a notary public, who shall make the | 143 |
certification described in section 147.53 of the Revised Code and | 144 |
also shall attest that the principal appears to be of sound mind | 145 |
and not under or subject to duress, fraud, or undue influence. | 146 |
(D)(1) If a principal has both a valid durable power of | 147 |
attorney for health care and a valid declaration, division (B) of | 148 |
section 2133.03 of the Revised Code applies. If a principal has | 149 |
both a valid durable power of attorney for health care and a DNR | 150 |
identification that is based upon a valid declaration and if the | 151 |
declaration supersedes the durable power of attorney for health | 152 |
care under division (B) of section 2133.03 of the Revised Code, | 153 |
the DNR identification supersedes the durable power of attorney | 154 |
for health care to the extent of any conflict between the two. A | 155 |
valid durable power of attorney for health care supersedes any DNR | 156 |
identification that is based upon a do-not-resuscitate order that | 157 |
a physician issued for the principal which is inconsistent with | 158 |
the durable power of attorney for health care or a valid decision | 159 |
by the attorney in fact under a durable power of attorney. | 160 |
(2) As used in division (D) of this section: | 161 |
(a) "Declaration" has the same meaning as in section 2133.01 | 162 |
of the Revised Code. | 163 |
(b) "Do-not-resuscitate order" and "DNR identification" have | 164 |
the same meanings as in section 2133.21 of the Revised Code. | 165 |
Sec. 1337.21. Sections 1337.21 to 1337.64 of the Revised | 166 |
Code may be cited as the uniform power of attorney act. | 167 |
Sec. 1337.22. As used in sections 1337.21 to 1337.64 of the | 168 |
Revised Code: | 169 |
(A) "Agent" means a person granted authority to act for a | 170 |
principal under a power of attorney, whether denominated an agent, | 171 |
attorney in fact, or otherwise. "Agent" includes an original | 172 |
agent, coagent, successor agent, and a person to which an agent's | 173 |
authority is delegated. | 174 |
(B) "Durable," with respect to a power of attorney, means not | 175 |
terminated by the principal's incapacity. | 176 |
(C) "Electronic" means relating to technology having | 177 |
electrical, digital, magnetic, wireless, optical, electromagnetic, | 178 |
or similar capabilities. | 179 |
(D) "Good faith" means honesty in fact. | 180 |
(E) "Incapacity" means inability of an individual to manage | 181 |
property or business affairs for either of the following reasons: | 182 |
(1) The individual has an impairment in the ability to | 183 |
receive and evaluate information or make or communicate decisions | 184 |
even with the use of technological assistance. | 185 |
(2) The individual is any of the following: | 186 |
(a) Missing; | 187 |
(b) Detained, including incarcerated in a penal system; | 188 |
(c) Outside the United States and unable to return. | 189 |
(F) "Person" means an individual, corporation, business | 190 |
trust, estate, trust, partnership, limited liability company, | 191 |
association, joint venture, public corporation, government or | 192 |
governmental subdivision, agency, or instrumentality, or any other | 193 |
legal or commercial entity. | 194 |
(G) "Power of attorney" means a writing or other record that | 195 |
grants authority to an agent to act in the place of the principal, | 196 |
whether or not the term power of attorney is used. | 197 |
(H) "Presently exercisable general power of appointment," | 198 |
with respect to property or a property interest subject to a power | 199 |
of appointment, means power exercisable at the time in question to | 200 |
vest absolute ownership in the principal individually, the | 201 |
principal's estate, the principal's creditors, or the creditors of | 202 |
the principal's estate. The term includes a power of appointment | 203 |
not exercisable until the occurrence of a specified event, the | 204 |
satisfaction of an ascertainable standard, or the passage of a | 205 |
specified period only after the occurrence of the specified event, | 206 |
the satisfaction of the ascertainable standard, or the passage of | 207 |
the specified period. The term does not include a power | 208 |
exercisable in a fiduciary capacity or only by will. | 209 |
(I) "Principal" means an individual who grants authority to | 210 |
an agent in a power of attorney. | 211 |
(J) "Property" means anything that may be the subject of | 212 |
ownership, whether real or personal, or legal or equitable, or any | 213 |
interest or right therein. | 214 |
(K) "Record" means information that is inscribed on a | 215 |
tangible medium or that is stored in an electronic or other medium | 216 |
and is retrievable in perceivable form. | 217 |
(L) "Sign" means, with present intent to authenticate or | 218 |
adopt a record, to execute or adopt a tangible symbol or to attach | 219 |
to or logically associate with the record an electronic sound, | 220 |
symbol, or process. | 221 |
(M) "State" means a state of the United States, the District | 222 |
of Columbia, Puerto Rico, the United States Virgin Islands, or any | 223 |
territory or insular possession subject to the jurisdiction of the | 224 |
United States. | 225 |
(N) "Stocks and bonds" means stocks, bonds, mutual funds, and | 226 |
all other types of securities and financial instruments, whether | 227 |
held directly, indirectly, or in any other manner, but does not | 228 |
include commodity futures contracts or call or put options on | 229 |
stocks or stock indexes. | 230 |
Sec. 1337.23. Sections 1337.21 to 1337.64 of the Revised | 231 |
Code apply to all powers of attorney except the following: | 232 |
(A) A power to the extent it is coupled with an interest in | 233 |
the subject of the power, including a power given to or for the | 234 |
benefit of a creditor in connection with a credit transaction; | 235 |
(B) A power to make health-care decisions; | 236 |
(C) A proxy or other delegation to exercise voting rights or | 237 |
management rights with respect to an entity; | 238 |
(D) A power created on a form prescribed by a government or | 239 |
governmental subdivision, agency, or instrumentality for a | 240 |
governmental purpose. | 241 |
Sec. 1337.24. A power of attorney created under sections | 242 |
1337.21 to 1337.64 of the Revised Code is durable unless it | 243 |
expressly provides that it is terminated by the incapacity of the | 244 |
principal. | 245 |
Sec. 1337.25. A power of attorney must be signed by the | 246 |
principal or in the principal's conscious presence by another | 247 |
individual directed by the principal to sign the principal's name | 248 |
on the power of attorney. A signature on a power of attorney is | 249 |
presumed to be genuine if the principal acknowledges the signature | 250 |
before a notary public or other individual authorized by law to | 251 |
take acknowledgments. | 252 |
Sec. 1337.26. (A) A power of attorney executed in this state | 253 |
on or after the effective date of this section is valid if its | 254 |
execution complies with section 1337.25 of the Revised Code. | 255 |
(B) A power of attorney executed in this state before the | 256 |
effective date of this section is valid if its execution complied | 257 |
with the law of this state as it existed at the time of execution. | 258 |
(C) A power of attorney executed other than in this state is | 259 |
valid in this state if, when the power of attorney was executed, | 260 |
the execution complied with the law of the jurisdiction that | 261 |
determines the meaning and effect of the power of attorney | 262 |
pursuant to section 1337.27 of the Revised Code or with the | 263 |
requirements for a military power of attorney pursuant to 10 | 264 |
U.S.C. 1044b. | 265 |
(D) Except as otherwise provided by statute other than | 266 |
sections 1337.21 to 1337.64 of the Revised Code, a photocopy or | 267 |
electronically transmitted copy of an original power of attorney | 268 |
has the same effect as the original. | 269 |
Sec. 1337.27. The meaning and effect of a power of attorney | 270 |
is determined by the law of the jurisdiction indicated in the | 271 |
power of attorney and, in the absence of an indication of | 272 |
jurisdiction, by the law of the jurisdiction in which the power of | 273 |
attorney was executed. | 274 |
Sec. 1337.28. (A) In a power of attorney, a principal may | 275 |
nominate a guardian of the principal's person, estate, or both and | 276 |
may nominate a guardian of the person, the estate, or both of one | 277 |
or more of the principal's minor children, whether born at the | 278 |
time of the execution of the power of attorney or afterward. The | 279 |
nomination is for consideration by a court if proceedings for the | 280 |
appointment of a guardian for the principal's person, estate, or | 281 |
both or if proceedings for the appointment of a guardian of the | 282 |
person, the estate, or both of one or more of the principal's | 283 |
minor children are commenced at a later time. The principal may | 284 |
authorize the person nominated as guardian or the agent to | 285 |
nominate a successor guardian for consideration by a court. Except | 286 |
for good cause shown or disqualification, the court shall make its | 287 |
appointment in accordance with the principal's most recent | 288 |
nomination. Nomination of a person as a guardian or successor | 289 |
guardian of the person, the estate, or both of one or more of the | 290 |
principal's minor children under this division, and any subsequent | 291 |
appointment of the guardian or successor guardian as guardian | 292 |
under section 2111.02 of the Revised Code, does not vacate the | 293 |
jurisdiction of any other court that previously may have exercised | 294 |
jurisdiction over the person of the minor. | 295 |
(B) The principal may direct that bond be waived for a person | 296 |
nominated as guardian or as a successor guardian. | 297 |
(C) If, after a principal executes a power of attorney, a | 298 |
court appoints a guardian of the principal's estate or other | 299 |
fiduciary charged with the management of some or all of the | 300 |
principal's property, the agent is accountable to the fiduciary as | 301 |
well as to the principal. The power of attorney is not terminated | 302 |
and the agent's authority continues unless limited, suspended, or | 303 |
terminated by the court after notice to the agent and upon a | 304 |
finding that the limitation, suspension, or termination would be | 305 |
in the best interest of the principal. | 306 |
(D) A power of attorney that contains the nomination of a | 307 |
person to be the guardian of the person, the estate, or both of | 308 |
one or more of the principal's minor children under this division | 309 |
may be filed with the probate court for safekeeping, and the | 310 |
probate court shall designate the nomination as the nomination of | 311 |
a standby guardian. | 312 |
Sec. 1337.29. (A) A power of attorney is effective when | 313 |
executed unless the principal provides in the power of attorney | 314 |
that it becomes effective at a future date or upon the occurrence | 315 |
of a future event or contingency. | 316 |
(B) If a power of attorney becomes effective upon the | 317 |
occurrence of a future event or contingency, the principal, in the | 318 |
power of attorney, may authorize one or more persons to determine | 319 |
in a writing or other record that the event or contingency has | 320 |
occurred. | 321 |
(C) If a power of attorney becomes effective upon the | 322 |
principal's incapacity and the principal has not authorized a | 323 |
person to determine whether the principal is incapacitated, or the | 324 |
person authorized is unable or unwilling to make the | 325 |
determination, the power of attorney becomes effective upon one of | 326 |
the following determinations made in a writing or other record: | 327 |
(1) A determination by a physician who has examined the | 328 |
principal or a licensed psychologist who has evaluated the | 329 |
principal that the principal is incapacitated within the meaning | 330 |
of division (E)(1) of section 1337.22 of the Revised Code; | 331 |
(2) A determination by an attorney at law, a judge, or an | 332 |
appropriate governmental official that the principal is | 333 |
incapacitated within the meaning of division (E)(2) of section | 334 |
1337.22 of the Revised Code. | 335 |
(D) A person authorized by the principal in the power of | 336 |
attorney to determine that the principal is incapacitated may act | 337 |
as the principal's personal representative pursuant to 42 U.S.C. | 338 |
1320d to 1320d-8, and applicable regulations, to obtain access to | 339 |
the principal's health-care information and communicate with the | 340 |
principal's health-care provider. | 341 |
Sec. 1337.30. (A) A power of attorney terminates when any of | 342 |
the following occurs: | 343 |
(1) The principal dies; | 344 |
(2) The principal becomes incapacitated, if the power of | 345 |
attorney is not durable; | 346 |
(3) The principal revokes the power of attorney; | 347 |
(4) The power of attorney provides that it terminates; | 348 |
(5) The purpose of the power of attorney is accomplished; | 349 |
(6) The principal revokes the agent's authority or the agent | 350 |
dies, becomes incapacitated, or resigns, and the power of attorney | 351 |
does not provide for another agent to act under the power of | 352 |
attorney. | 353 |
(B) An agent's authority terminates when any of the following | 354 |
occurs: | 355 |
(1) The principal revokes the authority; | 356 |
(2) The agent dies, becomes incapacitated, or resigns; | 357 |
(3) An action is filed for the divorce, dissolution, or | 358 |
annulment of the agent's marriage to the principal or their legal | 359 |
separation, unless the power of attorney otherwise provides; | 360 |
(4) The power of attorney terminates. | 361 |
(C) Unless the power of attorney otherwise provides, an | 362 |
agent's authority is exercisable until the authority terminates | 363 |
under division (B) of this section, notwithstanding a lapse of | 364 |
time since the execution of the power of attorney. | 365 |
(D) Termination of an agent's authority or of a power of | 366 |
attorney is not effective as to the agent or another person that, | 367 |
without actual knowledge of the termination, acts in good faith | 368 |
under the power of attorney. An act so performed, unless otherwise | 369 |
invalid or unenforceable, binds the principal and the principal's | 370 |
successors in interest. | 371 |
(E) Incapacity of the principal of a power of attorney that | 372 |
is not durable does not revoke or terminate the power of attorney | 373 |
as to an agent or other person that, without actual knowledge of | 374 |
the incapacity, acts in good faith under the power of attorney. An | 375 |
act so performed, unless otherwise invalid or unenforceable, binds | 376 |
the principal and the principal's successors in interest. | 377 |
(F) The execution of a power of attorney does not revoke a | 378 |
power of attorney previously executed by the principal unless the | 379 |
subsequent power of attorney provides that the previous power of | 380 |
attorney is revoked or that all other powers of attorney are | 381 |
revoked. | 382 |
Sec. 1337.31. (A) A principal may designate two or more | 383 |
persons to act as coagents. Unless the power of attorney otherwise | 384 |
provides, each coagent may exercise its authority independently. | 385 |
(B) A principal may designate one or more successor agents to | 386 |
act if an agent resigns, dies, becomes incapacitated, is not | 387 |
qualified to serve, or declines to serve. A principal may grant | 388 |
authority to designate one or more successor agents to an agent or | 389 |
other person designated by name, office, or function. Unless the | 390 |
power of attorney otherwise provides, a successor agent has the | 391 |
same authority as that granted to the original agent and may not | 392 |
act until all predecessor agents have resigned, died, become | 393 |
incapacitated, are no longer qualified to serve, or have declined | 394 |
to serve. | 395 |
(C) Except as otherwise provided in the power of attorney and | 396 |
division (D) of this section, an agent that does not participate | 397 |
in or conceal a breach of fiduciary duty committed by another | 398 |
agent, including a predecessor agent, is not liable for the | 399 |
actions of the other agent. | 400 |
(D) An agent that has actual knowledge of a breach or | 401 |
imminent breach of fiduciary duty by another agent shall notify | 402 |
the principal and, if the principal is incapacitated, take any | 403 |
action reasonably appropriate in the circumstances to safeguard | 404 |
the principal's best interest. An agent that fails to notify the | 405 |
principal or take action as required by this division is liable | 406 |
for the reasonably foreseeable damages that could have been | 407 |
avoided if the agent had notified the principal or taken action as | 408 |
required by this division. | 409 |
Sec. 1337.32. Unless the power of attorney otherwise | 410 |
provides, an agent is entitled to reimbursement of expenses | 411 |
reasonably incurred on behalf of the principal and to compensation | 412 |
that is reasonable under the circumstances. | 413 |
Sec. 1337.33. Except as otherwise provided in the power of | 414 |
attorney, a person accepts appointment as an agent under a power | 415 |
of attorney by exercising authority or performing duties as an | 416 |
agent or by any other assertion or conduct indicating acceptance. | 417 |
Sec. 1337.34. (A) Notwithstanding provisions in the power of | 418 |
attorney, an agent that has accepted appointment shall do all of | 419 |
the following: | 420 |
(1) Act in accordance with the principal's reasonable | 421 |
expectations to the extent actually known by the agent and, | 422 |
otherwise, in the principal's best interest; | 423 |
(2) Act in good faith; | 424 |
(3) Act only within the scope of authority granted in the | 425 |
power of attorney; | 426 |
(4) Attempt to preserve the principal's estate plan to the | 427 |
extent actually known by the agent if preserving the plan is | 428 |
consistent with the principal's best interest based on all | 429 |
relevant factors, including all of the following: | 430 |
(a) The value and nature of the principal's property; | 431 |
(b) The principal's foreseeable obligations and need for | 432 |
maintenance; | 433 |
(c) Minimization of taxes, including income, estate, | 434 |
inheritance, generation-skipping transfer, and gift taxes; | 435 |
(d) Eligibility for a benefit, a program, or assistance under | 436 |
a statute or regulation. | 437 |
(B) Except as otherwise provided in the power of attorney, an | 438 |
agent that has accepted appointment shall do all of the following: | 439 |
(1) Act loyally for the principal's benefit; | 440 |
(2) Act so as not to create a conflict of interest that | 441 |
impairs the agent's ability to act impartially in the principal's | 442 |
best interest; | 443 |
(3) Act with the care, competence, and diligence ordinarily | 444 |
exercised by agents in similar circumstances; | 445 |
(4) Keep a record of all receipts, disbursements, and | 446 |
transactions made on behalf of the principal; | 447 |
(5) Cooperate with a person that has authority to make | 448 |
health-care decisions for the principal to carry out the | 449 |
principal's reasonable expectations to the extent actually known | 450 |
by the agent and, otherwise, act in the principal's best interest. | 451 |
(C) An agent that acts in good faith is not liable to any | 452 |
beneficiary of the principal's estate plan for failure to preserve | 453 |
the plan. | 454 |
(D) An agent that acts with care, competence, and diligence | 455 |
for the best interest of the principal is not liable solely | 456 |
because the agent also benefits from the act or has an individual | 457 |
or conflicting interest in relation to the property or affairs of | 458 |
the principal. | 459 |
(E) If an agent is selected by the principal because of | 460 |
special skills or expertise possessed by the agent or in reliance | 461 |
on the agent's representation that the agent has special skills or | 462 |
expertise, the special skills or expertise must be considered in | 463 |
determining whether the agent has acted with care, competence, and | 464 |
diligence under the circumstances. | 465 |
(F) Absent a breach of duty to the principal, an agent is not | 466 |
liable if the value of the principal's property declines. | 467 |
(G) An agent that exercises authority to delegate to another | 468 |
person the authority granted by the principal or that engages | 469 |
another person on behalf of the principal is not liable for an | 470 |
act, error of judgment, or default of that person if the agent | 471 |
exercises care, competence, and diligence in selecting and | 472 |
monitoring the person. | 473 |
(H) Except as otherwise provided in the power of attorney, an | 474 |
agent is not required to disclose receipts, disbursements, or | 475 |
transactions conducted on behalf of the principal unless ordered | 476 |
by a court or requested by the principal, a guardian, a | 477 |
conservator, another fiduciary acting for the principal, a | 478 |
governmental agency having authority to protect the welfare of the | 479 |
principal, or, upon the death of the principal, by the personal | 480 |
representative or successor in interest of the principal's estate. | 481 |
If so requested, within thirty days the agent shall comply with | 482 |
the request or provide a writing or other record substantiating | 483 |
why additional time is needed and shall comply with the request | 484 |
within an additional thirty days. | 485 |
Sec. 1337.35. A provision in a power of attorney relieving | 486 |
an agent of liability for breach of duty is binding on the | 487 |
principal and the principal's successors in interest except to the | 488 |
extent that either of the following applies: | 489 |
(A) The provision relieves the agent of liability for breach | 490 |
of duty committed dishonestly, with an improper motive, or with | 491 |
reckless indifference to the purposes of the power of attorney or | 492 |
the best interest of the principal. | 493 |
(B) The provision was inserted as a result of an abuse of a | 494 |
confidential or fiduciary relationship with the principal. | 495 |
Sec. 1337.36. (A) Any of the following persons may petition | 496 |
a court to construe a power of attorney or review the agent's | 497 |
conduct and grant appropriate relief: | 498 |
(1) The principal or the agent; | 499 |
(2) A guardian, conservator, or other fiduciary acting for | 500 |
the principal, including an executor or administrator of the | 501 |
estate of a deceased principal; | 502 |
(3) A person authorized to make health-care decisions for the | 503 |
principal; | 504 |
(4) The principal's spouse, parent, or descendant; | 505 |
(5) An individual who would qualify as a presumptive heir of | 506 |
the principal; | 507 |
(6) A person named as a beneficiary to receive any property, | 508 |
benefit, or contractual right on the principal's death or as a | 509 |
beneficiary of a trust created by or for the principal that has a | 510 |
financial interest in the principal's estate; | 511 |
(7) A governmental agency having regulatory authority to | 512 |
protect the welfare of the principal; | 513 |
(8) The principal's caregiver or another person that | 514 |
demonstrates sufficient interest in the principal's welfare; | 515 |
(9) A person asked to accept the power of attorney. | 516 |
(B) Upon motion by the principal, the court shall dismiss a | 517 |
petition filed under this section, unless the court finds that the | 518 |
principal lacks capacity to revoke the agent's authority or the | 519 |
power of attorney. | 520 |
Sec. 1337.37. An agent that violates sections 1337.21 to | 521 |
1337.64 of the Revised Code is liable to the principal or the | 522 |
principal's successors in interest for the amount required to | 523 |
restore the value of the principal's property to what it would | 524 |
have been had the violation not occurred and the amount required | 525 |
to reimburse the principal or the principal's successors in | 526 |
interest for the attorney's fees and costs paid on the agent's | 527 |
behalf. | 528 |
Sec. 1337.38. Unless the power of attorney provides a | 529 |
different method for an agent's resignation, an agent may resign | 530 |
by giving notice to the principal and, if the principal is | 531 |
incapacitated, to whichever of the following applies: | 532 |
(A) The guardian, if one has been appointed for the | 533 |
principal, and any coagent or successor agent; | 534 |
(B) If there is no person described in division (A) of this | 535 |
section, to any of the following: | 536 |
(1) The principal's caregiver; | 537 |
(2) Another person reasonably believed by the agent to have | 538 |
sufficient interest in the principal's welfare; | 539 |
(3) A governmental agency having authority to protect the | 540 |
welfare of the principal. | 541 |
Sec. 1337.39. Unless displaced by a provision of sections | 542 |
1337.21 to 1337.64 of the Revised Code, the principles of law and | 543 |
equity supplement those sections. | 544 |
Sec. 1337.40. In the event of a conflict between any | 545 |
provision of sections 1337.21 to 1337.64 of the Revised Code and | 546 |
any other provision of law applicable to financial institutions or | 547 |
other entities, the other provision of law controls. | 548 |
Sec. 1337.41. The remedies provided under sections 1337.21 | 549 |
to 1337.64 of the Revised Code are not exclusive and do not | 550 |
abrogate any right or remedy under any other provision of law of | 551 |
this state. | 552 |
Sec. 1337.42. (A) An agent under a power of attorney may do | 553 |
any of the following on behalf of the principal or with the | 554 |
principal's property only if the power of attorney expressly | 555 |
grants the agent the authority and if exercise of the authority is | 556 |
not otherwise prohibited by another agreement or instrument to | 557 |
which the authority or property is subject, and, with respect to a | 558 |
revocable trust of which the principal was the settlor, if the | 559 |
trust agreement expressly authorizes the agent to exercise the | 560 |
principal's powers with respect to the revocation, amendment, or | 561 |
distribution: | 562 |
(1) Create, amend, revoke, or terminate an inter vivos trust | 563 |
to the extent permitted by section 5801.05 of the Revised Code or | 564 |
any other provision of Title LVIII of the Revised Code; | 565 |
(2) Make a gift; | 566 |
(3) Create or change rights of survivorship; | 567 |
(4) Create or change a beneficiary designation; | 568 |
(5) Delegate authority granted under the power of attorney; | 569 |
(6) Waive the principal's right to be a beneficiary of a | 570 |
joint and survivor annuity, including a survivor benefit under a | 571 |
retirement plan; | 572 |
(7) Exercise fiduciary powers that the principal has | 573 |
authority to delegate. | 574 |
(B) Notwithstanding a grant of authority to do an act | 575 |
described in division (A) of this section, unless the power of | 576 |
attorney otherwise provides, an agent that is not an ancestor, | 577 |
spouse, or descendant of the principal may not exercise authority | 578 |
under a power of attorney to create in the agent, or in an | 579 |
individual to whom the agent owes a legal obligation of support, | 580 |
an interest in the principal's property, whether by gift, right of | 581 |
survivorship, beneficiary designation, disclaimer, or otherwise. | 582 |
(C) Subject to divisions (A), (B), (D), and (E) of this | 583 |
section, if a power of attorney grants to an agent authority to do | 584 |
all acts that a principal could do, the agent has the general | 585 |
authority described in sections 1337.45 to 1337.57 of the Revised | 586 |
Code. | 587 |
(D) Unless the power of attorney otherwise provides, a grant | 588 |
of authority to make a gift is subject to section 1337.58 of the | 589 |
Revised Code. | 590 |
(E) Subject to divisions (A), (B), and (D) of this section, | 591 |
if the subjects over which authority is granted in a power of | 592 |
attorney are similar or overlap, the broadest authority controls. | 593 |
(F) Authority granted in a power of attorney is exercisable | 594 |
with respect to property that the principal has when the power of | 595 |
attorney is executed or acquires later, whether or not the | 596 |
property is located in this state and whether or not the authority | 597 |
is exercised or the power of attorney is executed in this state. | 598 |
(G) An act performed by an agent pursuant to a power of | 599 |
attorney has the same effect and inures to the benefit of and | 600 |
binds the principal and the principal's successors in interest as | 601 |
if the principal had performed the act. | 602 |
Sec. 1337.43. (A) An agent has authority described in | 603 |
sections 1337.42 to 1337.58 of the Revised Code if the power of | 604 |
attorney refers to general authority with respect to the | 605 |
descriptive term for the subjects stated in sections 1337.45 to | 606 |
1337.58 of the Revised Code or cites the section of the Revised | 607 |
Code in which the authority is described. | 608 |
(B) A reference in a power of attorney to general authority | 609 |
with respect to the descriptive term for a subject in sections | 610 |
1337.45 to 1337.58 of the Revised Code or a citation to any of | 611 |
those sections incorporates the entire section as if it were set | 612 |
out in full in the power of attorney. | 613 |
(C) A principal may modify authority incorporated by | 614 |
reference. | 615 |
Sec. 1337.44. Except as otherwise provided in the power of | 616 |
attorney, by executing a power of attorney that incorporates by | 617 |
reference a subject described in sections 1337.45 to 1337.58 of | 618 |
the Revised Code or that grants to an agent authority to do all | 619 |
acts that a principal could do pursuant to division (C) of section | 620 |
1337.42 of the Revised Code, a principal authorizes the agent, | 621 |
with respect to that subject, to do all of the following: | 622 |
(A) Demand, receive, and obtain by litigation or otherwise, | 623 |
money or another thing of value to which the principal is, may | 624 |
become, or claims to be entitled, and conserve, invest, disburse, | 625 |
or use anything so received or obtained for the purposes intended; | 626 |
(B) Contract in any manner with any person, on terms | 627 |
agreeable to the agent, to accomplish a purpose of a transaction | 628 |
and perform, rescind, cancel, terminate, reform, restate, release, | 629 |
or modify the contract or another contract made by or on behalf of | 630 |
the principal; | 631 |
(C) Execute, acknowledge, seal, deliver, file, or record any | 632 |
instrument or communication the agent considers desirable to | 633 |
accomplish a purpose of a transaction, including creating at any | 634 |
time a schedule listing some or all of the principal's property | 635 |
and attaching it to the power of attorney; | 636 |
(D) Initiate, participate in, submit to alternative dispute | 637 |
resolution, settle, oppose, or propose or accept a compromise with | 638 |
respect to a claim existing in favor of or against the principal | 639 |
or intervene in litigation relating to the claim; | 640 |
(E) Seek on the principal's behalf the assistance of a court | 641 |
or other governmental agency to carry out an act authorized in the | 642 |
power of attorney; | 643 |
(F) Engage, compensate, and discharge an attorney, | 644 |
accountant, discretionary investment manager, expert witness, or | 645 |
other advisor; | 646 |
(G) Prepare, execute, and file a record, report, or other | 647 |
document to safeguard or promote the principal's interest under a | 648 |
statute or regulation; | 649 |
(H) Communicate with any representative or employee of a | 650 |
government or governmental subdivision, agency, or | 651 |
instrumentality, on behalf of the principal; | 652 |
(I) Access communications intended for, and communicate on | 653 |
behalf of the principal, whether by mail, electronic transmission, | 654 |
telephone, or other means; | 655 |
(J) Do any lawful act with respect to the subject and all | 656 |
property related to the subject. | 657 |
Sec. 1337.45. Unless the power of attorney otherwise | 658 |
provides, language in a power of attorney granting general | 659 |
authority with respect to real property authorizes the agent to do | 660 |
all of the following: | 661 |
(A) Demand, buy, lease, receive, accept as a gift or as | 662 |
security for an extension of credit, or otherwise acquire or | 663 |
reject an interest in real property or a right incident to real | 664 |
property; | 665 |
(B) Sell; exchange; convey with or without covenants, | 666 |
representations, or warranties; quitclaim; release; surrender; | 667 |
retain title for security; encumber; partition; consent to | 668 |
partitioning; subject to an easement or covenant; subdivide; apply | 669 |
for zoning or other governmental permits; plat or consent to | 670 |
platting; develop; grant an option concerning; lease; sublease; | 671 |
contribute to an entity in exchange for an interest in that | 672 |
entity; or otherwise grant or dispose of an interest in real | 673 |
property or a right incident to real property; | 674 |
(C) Pledge or mortgage an interest in real property or right | 675 |
incident to real property as security to borrow money or pay, | 676 |
renew, or extend the time of payment of a debt of the principal or | 677 |
a debt guaranteed by the principal; | 678 |
(D) Release, assign, satisfy, or enforce by litigation or | 679 |
otherwise a mortgage, deed of trust, conditional sale contract, | 680 |
encumbrance, lien, or other claim to real property that exists or | 681 |
is asserted; | 682 |
(E) Manage or conserve an interest in real property or a | 683 |
right incident to real property owned or claimed to be owned by | 684 |
the principal, including all of the following: | 685 |
(1) Insure against liability or casualty or other loss; | 686 |
(2) Obtain or regain possession of or protect the interest or | 687 |
right by litigation or otherwise; | 688 |
(3) Pay, assess, compromise, or contest taxes or assessments | 689 |
or apply for and receive refunds in connection with taxes; | 690 |
(4) Purchase supplies, hire assistance or labor, and make | 691 |
repairs or alterations to the real property. | 692 |
(F) Use, develop, alter, replace, remove, erect, or install | 693 |
structures or other improvements upon real property in or incident | 694 |
to which the principal has, or claims to have, an interest or | 695 |
right; | 696 |
(G) Participate in a reorganization with respect to real | 697 |
property or an entity that owns an interest in or right incident | 698 |
to real property and receive, and hold, and act with respect to | 699 |
stocks and bonds or other property received in a plan of | 700 |
reorganization, including all of the following: | 701 |
(1) Sell or otherwise dispose of them; | 702 |
(2) Exercise or sell an option, right of conversion, or | 703 |
similar right with respect to them; | 704 |
(3) Exercise any voting rights in person or by proxy. | 705 |
(H) Change the form of title of an interest in or right | 706 |
incident to real property; | 707 |
(I) Dedicate to public use, with or without consideration, | 708 |
easements or other real property in which the principal has, or | 709 |
claims to have, an interest. | 710 |
Sec. 1337.46. Unless the power of attorney otherwise | 711 |
provides, language in a power of attorney granting general | 712 |
authority with respect to tangible personal property authorizes | 713 |
the agent to do all of the following: | 714 |
(A) Demand, buy, receive, accept as a gift or as security for | 715 |
an extension of credit, or otherwise acquire or reject ownership | 716 |
or possession of tangible personal property or an interest in | 717 |
tangible personal property; | 718 |
(B) Sell; exchange; convey with or without covenants, | 719 |
representations, or warranties; quitclaim; release; surrender; | 720 |
create a security interest in; grant options concerning; lease; | 721 |
sublease; or otherwise dispose of tangible personal property or an | 722 |
interest in tangible personal property; | 723 |
(C) Grant a security interest in tangible personal property | 724 |
or an interest in tangible personal property as security to borrow | 725 |
money or pay, renew, or extend the time of payment of a debt of | 726 |
the principal or a debt guaranteed by the principal; | 727 |
(D) Release, assign, satisfy, or enforce by litigation or | 728 |
otherwise a security interest, lien, or other claim on behalf of | 729 |
the principal with respect to tangible personal property or an | 730 |
interest in tangible personal property; | 731 |
(E) Manage or conserve tangible personal property or an | 732 |
interest in tangible personal property on behalf of the principal, | 733 |
including all of the following: | 734 |
(1) Insure against liability or casualty or other loss; | 735 |
(2) Obtain or regain possession of or protect the property or | 736 |
interest by litigation or otherwise; | 737 |
(3) Pay, assess, compromise, or contest taxes or assessments | 738 |
or apply for and receive refunds in connection with taxes or | 739 |
assessments; | 740 |
(4) Move the property from place to place; | 741 |
(5) Store the property for hire or on a gratuitous bailment; | 742 |
(6) Use and make repairs, alterations, or improvements to the | 743 |
property. | 744 |
(F) Change the form of title of an interest in tangible | 745 |
personal property. | 746 |
Sec. 1337.47. Unless the power of attorney otherwise | 747 |
provides, language in a power of attorney granting general | 748 |
authority with respect to stocks and bonds authorizes the agent to | 749 |
do all of the following: | 750 |
(A) Buy, sell, and exchange stocks and bonds; | 751 |
(B) Establish, continue, modify, or terminate an account with | 752 |
respect to stocks and bonds; | 753 |
(C) Pledge stocks and bonds as security to borrow, pay, | 754 |
renew, or extend the time of payment of a debt of the principal; | 755 |
(D) Receive certificates and other evidences of ownership | 756 |
with respect to stocks and bonds; | 757 |
(E) Exercise voting rights with respect to stocks and bonds | 758 |
in person or by proxy, enter into voting trusts, and consent to | 759 |
limitations on the right to vote. | 760 |
Sec. 1337.48. Unless the power of attorney otherwise | 761 |
provides, language in a power of attorney granting general | 762 |
authority with respect to commodities and options authorizes the | 763 |
agent to do both of the following: | 764 |
(A) Buy, sell, exchange, assign, settle, and exercise | 765 |
commodity futures contracts and call or put options on stocks or | 766 |
stock indexes traded on a regulated option exchange; | 767 |
(B) Establish, continue, modify, and terminate option | 768 |
accounts. | 769 |
Sec. 1337.49. Unless the power of attorney otherwise | 770 |
provides, language in a power of attorney granting general | 771 |
authority with respect to banks and other financial institutions | 772 |
authorizes the agent to do all of the following: | 773 |
(A) Continue, modify, and terminate an account or other | 774 |
banking arrangement made by or on behalf of the principal; | 775 |
(B) Establish, modify, and terminate an account or other | 776 |
banking arrangement with a bank, trust company, savings and loan | 777 |
association, credit union, thrift company, brokerage firm, or | 778 |
other financial institution selected by the agent; | 779 |
(C) Contract for services available from a financial | 780 |
institution, including renting a safe deposit box or space in a | 781 |
vault; | 782 |
(D) Withdraw, by check, order, electronic funds transfer, or | 783 |
otherwise, money or property of the principal deposited with or | 784 |
left in the custody of a financial institution; | 785 |
(E) Receive statements of account, vouchers, notices, and | 786 |
similar documents from a financial institution and act with | 787 |
respect to them; | 788 |
(F) Enter a safe deposit box or vault and withdraw or add to | 789 |
the contents; | 790 |
(G) Borrow money and pledge as security personal property of | 791 |
the principal necessary to borrow money or pay, renew, or extend | 792 |
the time of payment of a debt of the principal or a debt | 793 |
guaranteed by the principal; | 794 |
(H) Make, assign, draw, endorse, discount, guarantee, and | 795 |
negotiate promissory notes, checks, drafts, and other negotiable | 796 |
or nonnegotiable paper of the principal or payable to the | 797 |
principal or the principal's order, transfer money, receive the | 798 |
cash or other proceeds of those transactions, and accept a draft | 799 |
drawn by a person upon the principal and pay it when due; | 800 |
(I) Receive for the principal and act upon a sight draft, | 801 |
warehouse receipt, or other document of title whether tangible or | 802 |
electronic, or other negotiable or nonnegotiable instrument; | 803 |
(J) Apply for, receive, and use letters of credit, credit and | 804 |
debit cards, electronic transaction authorizations, and traveler's | 805 |
checks from a financial institution and give an indemnity or other | 806 |
agreement in connection with letters of credit; | 807 |
(K) Consent to an extension of the time of payment with | 808 |
respect to commercial paper or a financial transaction with a | 809 |
financial institution. | 810 |
Sec. 1337.50. Subject to the terms of a document or an | 811 |
agreement governing an entity or an entity ownership interest, and | 812 |
unless the power of attorney otherwise provides, language in a | 813 |
power of attorney granting general authority with respect to the | 814 |
operation of an entity or business authorizes the agent to do all | 815 |
of the following: | 816 |
(A) Operate, buy, sell, enlarge, reduce, or terminate an | 817 |
ownership interest; | 818 |
(B) Perform a duty or discharge a liability and exercise in | 819 |
person or by proxy a right, power, privilege, or option that the | 820 |
principal has, may have, or claims to have; | 821 |
(C) Enforce the terms of an ownership agreement; | 822 |
(D) Initiate, participate in, submit to alternative dispute | 823 |
resolution, settle, oppose, or propose or accept a compromise with | 824 |
respect to litigation to which the principal is a party because of | 825 |
an ownership interest; | 826 |
(E) Exercise in person or by proxy, or enforce by litigation | 827 |
or otherwise, a right, power, privilege, or option the principal | 828 |
has or claims to have as the holder of stocks and bonds; | 829 |
(F) Initiate, participate in, submit to alternative dispute | 830 |
resolution, settle, oppose, or propose or accept a compromise with | 831 |
respect to litigation to which the principal is a party concerning | 832 |
stocks and bonds; | 833 |
(G) With respect to an entity or business owned solely by the | 834 |
principal, do all of the following: | 835 |
(1) Continue, modify, renegotiate, extend, and terminate a | 836 |
contract made by or on behalf of the principal with respect to the | 837 |
entity or business before execution of the power of attorney; | 838 |
(2) Determine all of the following: | 839 |
(a) The location of its operation; | 840 |
(b) The nature and extent of its business; | 841 |
(c) The methods of manufacturing, selling, merchandising, | 842 |
financing, accounting, and advertising employed in its operation; | 843 |
(d) The amount and types of insurance carried; | 844 |
(e) The mode of engaging, compensating, and dealing with its | 845 |
employees and accountants, attorneys, or other advisors. | 846 |
(3) Change the name or form of organization under which the | 847 |
entity or business is operated and enter into an ownership | 848 |
agreement with other persons to take over all or part of the | 849 |
operation of the entity or business; | 850 |
(4) Demand and receive money due or claimed by the principal | 851 |
or on the principal's behalf in the operation of the entity or | 852 |
business and control and disburse the money in the operation of | 853 |
the entity or business. | 854 |
(H) Put additional capital into an entity or business in | 855 |
which the principal has an interest; | 856 |
(I) Join in a plan of reorganization, consolidation, | 857 |
conversion, domestication, or merger of the entity or business; | 858 |
(J) Sell or liquidate all or part of an entity or business; | 859 |
(K) Establish the value of an entity or business under a | 860 |
buy-out agreement to which the principal is a party; | 861 |
(L) Prepare, sign, file, and deliver reports, compilations of | 862 |
information, returns, or other papers with respect to an entity or | 863 |
business and make related payments; | 864 |
(M) Pay, compromise, or contest taxes, assessments, fines, or | 865 |
penalties and perform any other act to protect the principal from | 866 |
illegal or unnecessary taxation, assessments, fines, or penalties, | 867 |
with respect to an entity or business, including attempts to | 868 |
recover, in any manner permitted by law, money paid before or | 869 |
after the execution of the power of attorney. | 870 |
Sec. 1337.51. Unless the power of attorney otherwise | 871 |
provides, language in a power of attorney granting general | 872 |
authority with respect to insurance and annuities authorizes the | 873 |
agent to do all of the following: | 874 |
(A) Continue, pay the premium or make a contribution on, | 875 |
modify, exchange, rescind, release, or terminate a contract | 876 |
procured by or on behalf of the principal that insures or provides | 877 |
an annuity to either the principal or another person, whether or | 878 |
not the principal is a beneficiary under the contract; | 879 |
(B) Procure new, different, and additional contracts of | 880 |
insurance and annuities for the principal and the principal's | 881 |
spouse, children, and other dependents and select the amount, type | 882 |
of insurance or annuity, and mode of payment; | 883 |
(C) Pay the premium or make a contribution on, modify, | 884 |
exchange, rescind, release, or terminate a contract of insurance | 885 |
or annuity procured by the agent; | 886 |
(D) Apply for and receive a loan secured by a contract of | 887 |
insurance or annuity; | 888 |
(E) Surrender and receive the cash surrender value on a | 889 |
contract of insurance or annuity; | 890 |
(F) Exercise an election; | 891 |
(G) Exercise investment powers available under a contract of | 892 |
insurance or annuity; | 893 |
(H) Change the manner of paying premiums on a contract of | 894 |
insurance or annuity; | 895 |
(I) Change or convert the type of insurance or annuity with | 896 |
respect to which the principal has or claims to have authority | 897 |
described in this section; | 898 |
(J) Apply for and procure a benefit or assistance under a | 899 |
statute or regulation to guarantee or pay premiums of a contract | 900 |
of insurance on the life of the principal; | 901 |
(K) Collect, sell, assign, hypothecate, borrow against, or | 902 |
pledge the interest of the principal in a contract of insurance or | 903 |
annuity; | 904 |
(L) Select the form and timing of the payment of proceeds | 905 |
from a contract of insurance or annuity; | 906 |
(M) Pay from proceeds or otherwise, compromise or contest, | 907 |
and apply for refunds in connection with a tax or assessment | 908 |
levied by a taxing authority with respect to a contract of | 909 |
insurance or annuity or its proceeds or liability accruing by | 910 |
reason of the tax or assessment. | 911 |
Sec. 1337.52. (A) As used in this section, "estate, trust, | 912 |
or other beneficial interest" means a trust, probate estate, | 913 |
guardianship, conservatorship, escrow, or custodianship or a fund | 914 |
from which the principal is, may become, or claims to be entitled | 915 |
to a share or payment. | 916 |
(B) Unless the power of attorney otherwise provides, language | 917 |
in a power of attorney granting general authority with respect to | 918 |
estates, trusts, and other beneficial interests authorizes the | 919 |
agent to do all of the following: | 920 |
(1) Accept, receive, receipt for, sell, assign, pledge, or | 921 |
exchange a share in or payment from an estate, trust, or other | 922 |
beneficial interest; | 923 |
(2) Demand or obtain money or another thing of value to which | 924 |
the principal is, may become, or claims to be entitled by reason | 925 |
of an estate, trust, or other beneficial interest, by litigation | 926 |
or otherwise; | 927 |
(3) Exercise for the benefit of the principal a presently | 928 |
exercisable general power of appointment held by the principal; | 929 |
(4) Initiate, participate in, submit to alternative dispute | 930 |
resolution, settle, oppose, or propose or accept a compromise with | 931 |
respect to litigation to ascertain the meaning, validity, or | 932 |
effect of a deed, will, declaration of trust, or other instrument | 933 |
or transaction affecting the interest of the principal; | 934 |
(5) Initiate, participate in, submit to alternative dispute | 935 |
resolution, settle, oppose, or propose or accept a compromise with | 936 |
respect to litigation to remove, substitute, or surcharge a | 937 |
fiduciary; | 938 |
(6) Conserve, invest, disburse, or use anything received for | 939 |
an authorized purpose; | 940 |
(7) Transfer an interest of the principal in real property, | 941 |
stocks and bonds, accounts with financial institutions or | 942 |
securities intermediaries, insurance, annuities, and other | 943 |
property to the trustee of a revocable trust created by the | 944 |
principal as settlor; | 945 |
(8) Reject, renounce, disclaim, release, or consent to a | 946 |
reduction in or modification of a share in or payment from an | 947 |
estate, trust, or other beneficial interest. | 948 |
Sec. 1337.53. Unless the power of attorney otherwise | 949 |
provides, language in a power of attorney granting general | 950 |
authority with respect to claims and litigation authorizes the | 951 |
agent to do all of the following: | 952 |
(A) Assert and maintain before a court or administrative | 953 |
agency a claim, claim for relief, cause of action, counterclaim, | 954 |
offset, recoupment, or defense, including an action to recover | 955 |
property or other thing of value, recover damages sustained by the | 956 |
principal, eliminate or modify tax liability, or seek an | 957 |
injunction, specific performance, or other relief; | 958 |
(B) Bring an action to determine adverse claims or intervene | 959 |
or otherwise participate in litigation; | 960 |
(C) Seek an attachment, garnishment, order of arrest, or | 961 |
other preliminary, provisional, or intermediate relief and use an | 962 |
available procedure to effect or satisfy a judgment, order, or | 963 |
decree; | 964 |
(D) Make or accept a tender, offer of judgment, or admission | 965 |
of facts, submit a controversy on an agreed statement of facts, | 966 |
consent to examination, and bind the principal in litigation; | 967 |
(E) Submit to alternative dispute resolution, settle, and | 968 |
propose or accept a compromise; | 969 |
(F) Waive the issuance and service of process upon the | 970 |
principal, accept service of process, appear for the principal, | 971 |
designate persons upon which process directed to the principal may | 972 |
be served, execute and file or deliver stipulations on the | 973 |
principal's behalf, verify pleadings, seek appellate review, | 974 |
procure and give surety and indemnity bonds, contract and pay for | 975 |
the preparation and printing of records and briefs, receive, | 976 |
execute, and file or deliver a consent, waiver, release, | 977 |
confession of judgment, satisfaction of judgment, notice, | 978 |
agreement, or other instrument in connection with the prosecution, | 979 |
settlement, or defense of a claim or litigation; | 980 |
(G) Act for the principal with respect to bankruptcy or | 981 |
insolvency, whether voluntary or involuntary, concerning the | 982 |
principal or some other person, or with respect to a | 983 |
reorganization, receivership, or application for the appointment | 984 |
of a receiver or trustee that affects an interest of the principal | 985 |
in property or other thing of value; | 986 |
(H) Pay a judgment, award, or order against the principal or | 987 |
a settlement made in connection with a claim or litigation; | 988 |
(I) Receive money or other thing of value paid in settlement | 989 |
of or as proceeds of a claim or litigation. | 990 |
Sec. 1337.54. (A) Unless the power of attorney otherwise | 991 |
provides, language in a power of attorney granting general | 992 |
authority with respect to personal and family maintenance | 993 |
authorizes the agent to do all of the following: | 994 |
(1) Perform the acts necessary to maintain the customary | 995 |
standard of living of the principal, the principal's spouse, and | 996 |
the following individuals, whether living when the power of | 997 |
attorney is executed or later born: | 998 |
(a) Other individuals legally entitled to be supported by the | 999 |
principal; | 1000 |
(b) The individuals whom the principal has customarily | 1001 |
supported or indicated the intent to support. | 1002 |
(2) Make periodic payments of child support and other family | 1003 |
maintenance required by a court or governmental agency or an | 1004 |
agreement to which the principal is a party; | 1005 |
(3) Provide living quarters for the individuals described in | 1006 |
division (A)(1) of this section by doing either of the following: | 1007 |
(a) Purchasing, leasing, or otherwise contracting; | 1008 |
(b) Paying the operating costs, including interest, | 1009 |
amortization payments, repairs, improvements, and taxes, for | 1010 |
premises owned by the principal or occupied by those individuals. | 1011 |
(4) Provide normal domestic help, usual vacations and travel | 1012 |
expenses, and funds for shelter, clothing, food, appropriate | 1013 |
education, including postsecondary and vocational education, and | 1014 |
other current living costs for the individuals described in | 1015 |
division (A)(1) of this section; | 1016 |
(5) Pay expenses for necessary health care and custodial care | 1017 |
on behalf of the individuals described in division (A)(1) of this | 1018 |
section; | 1019 |
(6) Act as the principal's personal representative pursuant | 1020 |
to 42 U.S.C. 1320d to 1320d-9 and applicable regulations in making | 1021 |
decisions related to the past, present, or future payment for the | 1022 |
provision of health care consented to by the principal or anyone | 1023 |
authorized under the law of this state to consent to health care | 1024 |
on behalf of the principal; | 1025 |
(7) Continue any provision made by the principal for | 1026 |
automobiles or other means of transportation, including | 1027 |
registering, licensing, insuring, and replacing them, for the | 1028 |
individuals described in division (A)(1) of this section; | 1029 |
(8) Maintain credit and debit accounts for the convenience of | 1030 |
the individuals described in division (A)(1) of this section and | 1031 |
open new accounts; | 1032 |
(9) Continue payments incidental to the membership or | 1033 |
affiliation of the principal in a religious institution, club, | 1034 |
society, order, or other organization or to continue contributions | 1035 |
to those organizations. | 1036 |
(B) Authority with respect to personal and family maintenance | 1037 |
is neither dependent upon, nor limited by, authority that an agent | 1038 |
may or may not have with respect to gifts under sections 1337.21 | 1039 |
to 1337.64 of the Revised Code. | 1040 |
Sec. 1337.55. (A) As used in this section, "benefits from | 1041 |
governmental programs or civil or military service" means any | 1042 |
benefit, program, or assistance provided under a statute or | 1043 |
regulation, including social security, medicare, and medicaid. | 1044 |
(B) Unless the power of attorney otherwise provides, language | 1045 |
in a power of attorney granting general authority with respect to | 1046 |
benefits from governmental programs or civil or military service | 1047 |
authorizes the agent to do all of the following: | 1048 |
(1) Execute vouchers in the name of the principal for | 1049 |
allowances and reimbursements payable by the United States or a | 1050 |
foreign government or by a state or subdivision of a state to the | 1051 |
principal, including allowances and reimbursements for | 1052 |
transportation of the individuals described in division (A)(1) of | 1053 |
section 1337.54 of the Revised Code, and for shipment of their | 1054 |
household effects; | 1055 |
(2) Take possession and order the removal and shipment of | 1056 |
property of the principal from a post, warehouse, depot, dock, or | 1057 |
other place of storage or safekeeping, either governmental or | 1058 |
private, and execute and deliver a release, voucher, receipt, bill | 1059 |
of lading, shipping ticket, certificate, or other instrument for | 1060 |
that purpose; | 1061 |
(3) Enroll in, apply for, select, reject, change, amend, or | 1062 |
discontinue, on the principal's behalf, a benefit or program; | 1063 |
(4) Prepare, file, and maintain a claim of the principal for | 1064 |
a benefit or assistance, financial or otherwise, to which the | 1065 |
principal may be entitled under a statute or regulation; | 1066 |
(5) Initiate, participate in, submit to alternative dispute | 1067 |
resolution, settle, oppose, or propose or accept a compromise with | 1068 |
respect to litigation concerning any benefit or assistance the | 1069 |
principal may be entitled to receive under a statute or | 1070 |
regulation; | 1071 |
(6) Receive the financial proceeds of a claim described in | 1072 |
division (B)(4) of this section and conserve, invest, disburse, or | 1073 |
use for a lawful purpose anything so received. | 1074 |
Sec. 1337.56. (A) As used in this section, "retirement plan" | 1075 |
means a plan or account created by an employer, the principal, or | 1076 |
another individual to provide retirement benefits or deferred | 1077 |
compensation of which the principal is a participant, beneficiary, | 1078 |
or owner, including any of the following plans or accounts: | 1079 |
(1) An individual retirement account under section 408 of the | 1080 |
Internal Revenue Code of 1986, 26 U.S.C. 408; | 1081 |
(2) A Roth individual retirement account under section 408A | 1082 |
of the Internal Revenue Code of 1986, 26 U.S.C. 408A; | 1083 |
(3) A deemed individual retirement account under section | 1084 |
408(q) of the Internal Revenue Code of 1986, 26 U.S.C. 408(q); | 1085 |
(4) An annuity or mutual fund custodial account under section | 1086 |
403(b) of the Internal Revenue Code of 1986, 26 U.S.C. 403(b); | 1087 |
(5) A pension, profit-sharing, stock bonus, or other | 1088 |
retirement plan qualified under section 401(a) of the Internal | 1089 |
Revenue Code of 1986, 26 U.S.C. 401(a); | 1090 |
(6) A plan under section 457(b) of the Internal Revenue Code | 1091 |
of 1986, 26 U.S.C. 457(b); | 1092 |
(7) A nonqualified deferred compensation plan under section | 1093 |
409A of the Internal Revenue Code of 1986, 26 U.S.C. 409A. | 1094 |
(B) Unless the power of attorney otherwise provides, language | 1095 |
in a power of attorney granting general authority with respect to | 1096 |
retirement plans authorizes the agent to do all of the following: | 1097 |
(1) Select the form and timing of payments under a retirement | 1098 |
plan and withdraw benefits from a plan; | 1099 |
(2) Make a rollover, including a direct trustee-to-trustee | 1100 |
rollover, of benefits from one retirement plan to another; | 1101 |
(3) Establish a retirement plan in the principal's name; | 1102 |
(4) Make contributions to a retirement plan; | 1103 |
(5) Exercise investment powers available under a retirement | 1104 |
plan; | 1105 |
(6) Borrow from, sell assets to, or purchase assets from a | 1106 |
retirement plan. | 1107 |
Sec. 1337.57. Unless the power of attorney otherwise | 1108 |
provides, language in a power of attorney granting general | 1109 |
authority with respect to taxes authorizes the agent to do all of | 1110 |
the following: | 1111 |
(A) Prepare, sign, and file federal, state, local, and | 1112 |
foreign income, gift, payroll, property, Federal Insurance | 1113 |
Contributions Act, and other tax returns, claims for refunds, | 1114 |
requests for extension of time, petitions regarding tax matters, | 1115 |
and any other tax-related documents, including receipts, offers, | 1116 |
waivers, consents, including consents and agreements under section | 1117 |
2032A of the Internal Revenue Code of 1986, 26 U.S.C. 2032A, | 1118 |
closing agreements, and any power of attorney required by the | 1119 |
internal revenue service or other taxing authority with respect to | 1120 |
a tax year upon which the statute of limitations has not run and | 1121 |
the following twenty-five tax years; | 1122 |
(B) Pay taxes due, collect refunds, post bonds, receive | 1123 |
confidential information, and contest deficiencies determined by | 1124 |
the internal revenue service or other taxing authority; | 1125 |
(C) Exercise any election available to the principal under | 1126 |
federal, state, local, or foreign tax law; | 1127 |
(D) Act for the principal in all tax matters for all periods | 1128 |
before the internal revenue service, or other taxing authority. | 1129 |
Sec. 1337.58. (A) As used in this section, a gift "for the | 1130 |
benefit of" a person includes a gift to a trust, an account under | 1131 |
the Uniform Transfers to Minors Act, and a tuition savings account | 1132 |
or prepaid tuition plan as defined under section 529 of the | 1133 |
Internal Revenue Code of 1986, 26 U.S.C. 529. | 1134 |
(B) Unless the power of attorney otherwise provides, language | 1135 |
in a power of attorney granting general authority with respect to | 1136 |
gifts authorizes the agent to do only the following: | 1137 |
(1) Make outright to, or for the benefit of, a person, a gift | 1138 |
of any of the principal's property, including by the exercise of a | 1139 |
presently exercisable general power of appointment held by the | 1140 |
principal, in an amount per donee not to exceed the annual dollar | 1141 |
limits of the federal gift tax exclusion under section 2503(b) of | 1142 |
the Internal Revenue Code of 1986, 26 U.S.C. 2503(b), without | 1143 |
regard to whether the federal gift tax exclusion applies to the | 1144 |
gift, or if the principal's spouse agrees to consent to a split | 1145 |
gift pursuant to section 2513 of the Internal Revenue Code of | 1146 |
1986, 26 U.S.C. 2513, in an amount per donee not to exceed twice | 1147 |
the annual federal gift tax exclusion limit; | 1148 |
(2) Consent, pursuant to section 2513 of the Internal Revenue | 1149 |
Code of 1986, 26 U.S.C. 2513, to the splitting of a gift made by | 1150 |
the principal's spouse in an amount per donee not to exceed the | 1151 |
aggregate annual gift tax exclusions for both spouses. | 1152 |
(C) An agent may make a gift of the principal's property, | 1153 |
outright or by amending, creating, or funding a trust, only as the | 1154 |
agent determines is consistent with the principal's objectives if | 1155 |
actually known by the agent and, if unknown, as the agent | 1156 |
determines is consistent with the principal's best interest based | 1157 |
on all relevant factors, including all of the following: | 1158 |
(1) The value and nature of the principal's property; | 1159 |
(2) The principal's foreseeable obligations and need for | 1160 |
maintenance; | 1161 |
(3) Minimization of taxes, including income, estate, | 1162 |
inheritance, generation-skipping transfer, and gift taxes; | 1163 |
(4) Eligibility for a benefit, a program, or assistance under | 1164 |
a statute or regulation; | 1165 |
(5) The principal's personal history of making or joining in | 1166 |
making gifts. | 1167 |
Sec. 1337.59. In a power of attorney executed on or after | 1168 |
March 29, 2006, and before the effective date of this section that | 1169 |
either uses the statutory power of attorney form contained in | 1170 |
former section 1337.18 of the Revised Code or that incorporates by | 1171 |
reference any one or more of the powers contained in former | 1172 |
section 1337.20 of the Revised Code, the powers granted shall be | 1173 |
construed in accordance with former section 1337.20 of the Revised | 1174 |
Code. | 1175 |
Sec. 1337.60. A document substantially in the following form | 1176 |
may be used to create a statutory form power of attorney that has | 1177 |
the meaning and effect prescribed by sections 1337.21 to 1337.64 | 1178 |
of the Revised Code. | 1179 |
[INSERT NAME OF JURISDICTION] | 1180 |
STATUTORY FORM POWER OF ATTORNEY | 1181 |
IMPORTANT INFORMATION | 1182 |
This power of attorney authorizes another person (your agent) | 1183 |
to make decisions concerning your property for you (the | 1184 |
principal). Your agent will be able to make decisions and act with | 1185 |
respect to your property (including your money) whether or not you | 1186 |
are able to act for yourself. The meaning of authority over | 1187 |
subjects listed on this form is explained in the Uniform Power of | 1188 |
Attorney Act (sections 1337.21 to 1337.64 of the Revised Code). | 1189 |
This power of attorney does not authorize the agent to make | 1190 |
health-care decisions for you. | 1191 |
You should select someone you trust to serve as your agent. | 1192 |
Unless you specify otherwise, generally the agent's authority will | 1193 |
continue until you die or revoke the power of attorney or the | 1194 |
agent resigns or is unable to act for you. | 1195 |
Your agent is entitled to reasonable compensation unless you | 1196 |
state otherwise in the Special Instructions. | 1197 |
This form provides for designation of one agent. If you wish | 1198 |
to name more than one agent you may name a coagent in the Special | 1199 |
Instructions. Coagents are not required to act together unless you | 1200 |
include that requirement in the Special Instructions. | 1201 |
If your agent is unable or unwilling to act for you, your | 1202 |
power of attorney will end unless you have named a successor | 1203 |
agent. You may also name a second successor agent. | 1204 |
This power of attorney becomes effective immediately unless | 1205 |
you state otherwise in the Special Instructions. | 1206 |
ACTIONS REQUIRING EXPRESS AUTHORITY | 1207 |
Unless expressly authorized and initialed by me in the | 1208 |
Special Instructions, this power of attorney does not grant | 1209 |
authority to my agent to do any of the following: | 1210 |
(1) Create a trust; | 1211 |
(2) Amend, revoke, or terminate an inter vivos trust, even if | 1212 |
specific authority to do so is granted to the agent in the trust | 1213 |
agreement; | 1214 |
(3) Make a gift; | 1215 |
(4) Create or change rights of survivorship; | 1216 |
(5) Create or change a beneficiary designation; | 1217 |
(6) Delegate authority granted under the power of attorney; | 1218 |
(7) Waive the principal's right to be a beneficiary of a | 1219 |
joint and survivor annuity, including a survivor benefit under a | 1220 |
retirement plan; | 1221 |
(8) Exercise fiduciary powers that the principal has | 1222 |
authority to delegate. | 1223 |
CAUTION: Granting any of the above eight powers will give | 1224 |
your agent the authority to take actions that could significantly | 1225 |
reduce your property or change how your property is distributed at | 1226 |
your death. | 1227 |
If you have questions about the power of attorney or the | 1228 |
authority you are granting to your agent, you should seek legal | 1229 |
advice before signing this form. | 1230 |
DESIGNATION OF AGENT | 1231 |
I, ..................................... (Name of Principal) | 1232 |
name the following person as my agent: | 1233 |
Name of Agent: | 1234 | ||
1235 | |||
Agent's Address: | 1236 | ||
1237 | |||
Agent's Telephone Number: | 1238 | ||
1239 |
DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL) | 1240 |
If my agent is unable or unwilling to act for me, I name as | 1241 |
my successor agent: | 1242 |
Name of Successor Agent: | 1243 | ||
1244 | |||
Successor Agent's Address: | 1245 | ||
1246 | |||
Successor Agent's Telephone Number: | 1247 | ||
1248 |
If my successor agent is unable or unwilling to act for me, I | 1249 |
name as my second successor agent: | 1250 |
Name of Second Successor Agent: | 1251 | ||
1252 | |||
Second Successor Agent's Address: | 1253 | ||
1254 | |||
Second Successor Agent's Telephone Number: | 1255 | ||
1256 |
GRANT OF GENERAL AUTHORITY | 1257 |
I grant my agent and any successor agent general authority to | 1258 |
act for me with respect to the following subjects as defined in | 1259 |
the Uniform Power of Attorney Act (sections 1337.21 to 1337.64 of | 1260 |
the Revised Code): | 1261 |
(INITIAL each subject you want to include in the agent's | 1262 |
general authority. If you wish to grant general authority over all | 1263 |
of the subjects you may initial "All Preceding Subjects" instead | 1264 |
of initialing each subject.) | 1265 |
(...) Real Property | 1266 |
(...) Tangible Personal Property | 1267 |
(...) Stocks and Bonds | 1268 |
(...) Commodities and Options | 1269 |
(...) Banks and Other Financial Institutions | 1270 |
(...) Operation of Entity or Business | 1271 |
(...) Insurance and Annuities | 1272 |
(...) Estates, Trusts, and Other Beneficial Interests | 1273 |
(...) Claims and Litigation | 1274 |
(...) Personal and Family Maintenance | 1275 |
(...) Benefits from Governmental Programs or Civil or | 1276 |
Military Service | 1277 |
(...) Retirement Plans | 1278 |
(...) Taxes | 1279 |
(...) All Preceding Subjects | 1280 |
LIMITATION ON AGENT'S AUTHORITY | 1281 |
An agent that is not my ancestor, spouse, or descendant MAY | 1282 |
NOT use my property to benefit the agent or a person to whom the | 1283 |
agent owes an obligation of support unless I have included that | 1284 |
authority in the Special Instructions. | 1285 |
SPECIAL INSTRUCTIONS (OPTIONAL) | 1286 |
You may give special instructions on the following lines: | 1287 |
1288 | ||
1289 | ||
1290 | ||
1291 | ||
1292 | ||
1293 | ||
1294 | ||
1295 | ||
1296 |
EFFECTIVE DATE | 1297 |
This power of attorney is effective immediately unless I have | 1298 |
stated otherwise in the Special Instructions. | 1299 |
NOMINATION OF GUARDIAN (OPTIONAL) | 1300 |
If it becomes necessary for a court to appoint a guardian of | 1301 |
my estate or my person, I nominate the following person(s) for | 1302 |
appointment: | 1303 |
Name of Nominee for guardian of my estate: | 1304 | ||
1305 | |||
Nominee's Address: | 1306 | ||
1307 | |||
Nominee's Telephone Number: | 1308 | ||
1309 | |||
Name of Nominee for guardian of my person: | 1310 | ||
1311 | |||
Nominee's Address: | 1312 | ||
1313 | |||
Nominee's Telephone Number: | 1314 | ||
1315 |
RELIANCE ON THIS POWER OF ATTORNEY | 1316 |
Any person, including my agent, may rely upon the validity of | 1317 |
this power of attorney or a copy of it unless that person knows it | 1318 |
has terminated or is invalid. | 1319 |
SIGNATURE AND ACKNOWLEDGMENT | 1320 |
1321 | ||||
Your Signature | Date | 1322 |
1323 | |||
Your Name Printed | 1324 | ||
1325 | |||
Your Address | 1326 | ||
1327 | |||
Your Telephone Number | 1328 |
State of Ohio | 1329 |
County of .......................... | 1330 |
This document was acknowledged before me on | 1331 |
.................... (Date), by .......................... (Name | 1332 |
of Principal). | 1333 |
.............................. | 1334 | ||
Signature of Notary | 1335 | ||
My commission expires: | 1336 | ||
This document prepared by: | 1337 | ||
1338 | |||
1339 |
IMPORTANT INFORMATION FOR AGENT | 1340 |
Agent's Duties | 1341 |
When you accept the authority granted under this power of | 1342 |
attorney, a special legal relationship is created between you and | 1343 |
the principal. This relationship imposes upon you legal duties | 1344 |
that continue until you resign or the power of attorney is | 1345 |
terminated or revoked. You must: | 1346 |
(1) Do what you know the principal reasonably expects you to | 1347 |
do with the principal's property or, if you do not know the | 1348 |
principal's expectations, act in the principal's best interest; | 1349 |
(2) Act in good faith; | 1350 |
(3) Do nothing beyond the authority granted in this power of | 1351 |
attorney; | 1352 |
(4) Attempt to preserve the principal's estate plan if you | 1353 |
know the plan and preserving the plan is consistent with the | 1354 |
principal's best interest; | 1355 |
(5) Disclose your identity as an agent whenever you act for | 1356 |
the principal by writing or printing the name of the principal and | 1357 |
signing your own name as "agent" in the following manner: | 1358 |
(Principal's Name) by (Your Signature) as Agent | 1359 |
Unless the Special Instructions in this power of attorney | 1360 |
state otherwise, you must also: | 1361 |
(1) Act loyally for the principal's benefit; | 1362 |
(2) Avoid conflicts that would impair your ability to act in | 1363 |
the principal's best interest; | 1364 |
(3) Act with care, competence, and diligence; | 1365 |
(4) Keep a record of all receipts, disbursements, and | 1366 |
transactions made on behalf of the principal; | 1367 |
(5) Cooperate with any person that has authority to make | 1368 |
health-care decisions for the principal to do what you know the | 1369 |
principal reasonably expects or, if you do not know the | 1370 |
principal's expectations, to act in the principal's best interest. | 1371 |
Termination of Agent's Authority | 1372 |
You must stop acting on behalf of the principal if you learn | 1373 |
of any event that terminates this power of attorney or your | 1374 |
authority under this power of attorney. Events that terminate a | 1375 |
power of attorney or your authority to act under a power of | 1376 |
attorney include: | 1377 |
(1) The death of the principal; | 1378 |
(2) The principal's revocation of the power of attorney or | 1379 |
your authority; | 1380 |
(3) The occurrence of a termination event stated in the power | 1381 |
of attorney; | 1382 |
(4) The purpose of the power of attorney is fully | 1383 |
accomplished; | 1384 |
(5) If you are married to the principal, a legal action is | 1385 |
filed with a court to end your marriage, or for your legal | 1386 |
separation, unless the Special Instructions in this power of | 1387 |
attorney state that such an action will not terminate your | 1388 |
authority. | 1389 |
Liability of Agent | 1390 |
The meaning of the authority granted to you is defined in the | 1391 |
Uniform Power of Attorney Act (sections 1337.21 to 1337.64 of the | 1392 |
Revised Code). If you violate the Uniform Power of Attorney Act or | 1393 |
act outside the authority granted, you may be liable for any | 1394 |
damages caused by your violation. | 1395 |
If there is anything about this document or your duties that | 1396 |
you do not understand, you should seek legal advice. | 1397 |
Sec. 1337.61. The following optional form may be used by an | 1398 |
agent to certify facts concerning a power of attorney. | 1399 |
AGENT'S CERTIFICATION AS TO THE VALIDITY OF POWER OF ATTORNEY | 1400 |
AND AGENT'S AUTHORITY | 1401 |
State of Ohio | 1402 |
County of ..................... | 1403 |
I, ......................................... (Name of Agent), | 1404 |
certify under penalty of perjury that | 1405 |
............................. (Name of Principal) granted me | 1406 |
authority as an agent or successor agent in a power of attorney | 1407 |
dated ................................ | 1408 |
I further certify that to my knowledge: | 1409 |
(1) The Principal is alive and has not revoked the Power of | 1410 |
Attorney or my authority to act under the Power of Attorney and | 1411 |
the Power of Attorney and my authority to act under the Power of | 1412 |
Attorney have not terminated; | 1413 |
(2) If the Power of Attorney was drafted to become effective | 1414 |
upon the happening of an event or contingency, the event or | 1415 |
contingency has occurred; | 1416 |
(3) If I was named as a successor agent, the prior agent is | 1417 |
no longer able or willing to serve; | 1418 |
(4) | 1419 | |||
1420 | ||||
(Insert other relevant statements). | 1421 |
SIGNATURE AND ACKNOWLEDGMENT | 1422 |
1423 | ||||
Agent's Signature | Date | 1424 |
1425 | |||
Agent's Name Printed | 1426 | ||
1427 | |||
Agent's Address | 1428 | ||
1429 | |||
Agent's Telephone Number | 1430 |
State of Ohio | 1431 |
County of .......................... | 1432 |
This document was acknowledged before me on | 1433 |
......................, (Date) by ................................ | 1434 |
(Name of Agent). | 1435 |
.............................. | 1436 | ||
Signature of Notary | 1437 | ||
My commission expires: | 1438 | ||
This document prepared by: | 1439 | ||
1440 | |||
1441 |
Sec. 1337.62. In applying and construing sections 1337.21 to | 1443 |
1337.64 of the Revised Code, consideration shall be given to the | 1444 |
need to promote uniformity of the law with respect to its subject | 1445 |
matter among the states that enact it. | 1446 |
Sec. 1337.63. Sections 1337.21 to 1337.64 of the Revised | 1447 |
Code modify, limit, and supersede the "Electronic Signatures in | 1448 |
Global and National Commerce Act," 15 U.S.C. 7001 et seq., with | 1449 |
the exception of section 101(c) of that act, 15 U.S.C. 7001(c). | 1450 |
Sections 1337.21 to 1337.64 of the Revised Code do not authorize | 1451 |
electronic delivery of any of the notices described in section | 1452 |
103(b) of that act, 15 U.S.C. 7003(b). | 1453 |
Sec. 1337.64. (A) Except as otherwise provided in sections | 1454 |
1337.21 to 1337.64 of the Revised Code, on the effective date of | 1455 |
this section, those sections apply to all of the following: | 1456 |
(1) A power of attorney created before, on, or after the | 1457 |
effective date of this section; | 1458 |
(2) A judicial proceeding concerning a power of attorney | 1459 |
commenced on or after the effective date of this section; | 1460 |
(3) A judicial proceeding concerning a power of attorney | 1461 |
commenced before the effective date of this section, unless the | 1462 |
court finds that application of a provision of sections 1337.21 to | 1463 |
1337.64 of the Revised Code would substantially interfere with the | 1464 |
effective conduct of the judicial proceeding or prejudice the | 1465 |
rights of a party, in which case that provision does not apply and | 1466 |
the superseded law applies. | 1467 |
(B) Sections 1337.21 to 1337.64 of the Revised Code do not | 1468 |
affect an act done before the effective date of this section. | 1469 |
Sec. 2101.24. (A)(1) Except as otherwise provided by law, | 1470 |
the probate court has exclusive jurisdiction: | 1471 |
(a) To take the proof of wills and to admit to record | 1472 |
authenticated copies of wills executed, proved, and allowed in the | 1473 |
courts of any other state, territory, or country. If the probate | 1474 |
judge is unavoidably absent, any judge of the court of common | 1475 |
pleas may take proof of wills and approve bonds to be given, but | 1476 |
the record of these acts shall be preserved in the usual records | 1477 |
of the probate court. | 1478 |
(b) To grant and revoke letters testamentary and of | 1479 |
administration; | 1480 |
(c) To direct and control the conduct and settle the accounts | 1481 |
of executors and administrators and order the distribution of | 1482 |
estates; | 1483 |
(d) To appoint the attorney general to serve as the | 1484 |
administrator of an estate pursuant to section 2113.06 of the | 1485 |
Revised Code; | 1486 |
(e) To appoint and remove guardians, conservators, and | 1487 |
testamentary trustees, direct and control their conduct, and | 1488 |
settle their accounts; | 1489 |
(f) To grant marriage licenses; | 1490 |
(g) To make inquests respecting persons who are so mentally | 1491 |
impaired as a result of a mental or physical illness or | 1492 |
disability, or mental retardation, or as a result of chronic | 1493 |
substance abuse, that they are unable to manage their property and | 1494 |
affairs effectively, subject to guardianship; | 1495 |
(h) To qualify assignees, appoint and qualify trustees and | 1496 |
commissioners of insolvents, control their conduct, and settle | 1497 |
their accounts; | 1498 |
(i) To authorize the sale of lands, equitable estates, or | 1499 |
interests in lands or equitable estates, and the assignments of | 1500 |
inchoate dower in such cases of sale, on petition by executors, | 1501 |
administrators, and guardians; | 1502 |
(j) To authorize the completion of real estate contracts on | 1503 |
petition of executors and administrators; | 1504 |
(k) To construe wills; | 1505 |
(l) To render declaratory judgments, including, but not | 1506 |
limited to, those rendered pursuant to section 2107.084 of the | 1507 |
Revised Code; | 1508 |
(m) To direct and control the conduct of fiduciaries and | 1509 |
settle their accounts; | 1510 |
(n) To authorize the sale or lease of any estate created by | 1511 |
will if the estate is held in trust, on petition by the trustee; | 1512 |
(o) To terminate a testamentary trust in any case in which a | 1513 |
court of equity may do so; | 1514 |
(p) To hear and determine actions to contest the validity of | 1515 |
wills; | 1516 |
(q) To make a determination of the presumption of death of | 1517 |
missing persons and to adjudicate the property rights and | 1518 |
obligations of all parties affected by the presumption; | 1519 |
(r) To hear and determine an action commenced pursuant to | 1520 |
section 3107.41 of the Revised Code to obtain the release of | 1521 |
information pertaining to the birth name of the adopted person and | 1522 |
the identity of the adopted person's biological parents and | 1523 |
biological siblings; | 1524 |
(s) To act for and issue orders regarding wards pursuant to | 1525 |
section 2111.50 of the Revised Code; | 1526 |
(t) To hear and determine actions against sureties on the | 1527 |
bonds of fiduciaries appointed by the probate court; | 1528 |
(u) To hear and determine actions involving informed consent | 1529 |
for medication of persons hospitalized pursuant to section | 1530 |
5122.141 or 5122.15 of the Revised Code; | 1531 |
(v) To hear and determine actions relating to durable powers | 1532 |
of attorney for health care as described in division (D) of | 1533 |
section 1337.16 of the Revised Code; | 1534 |
(w) To hear and determine actions commenced by objecting | 1535 |
individuals, in accordance with section 2133.05 of the Revised | 1536 |
Code; | 1537 |
(x) To hear and determine complaints that pertain to the use | 1538 |
or continuation, or the withholding or withdrawal, of | 1539 |
life-sustaining treatment in connection with certain patients | 1540 |
allegedly in a terminal condition or in a permanently unconscious | 1541 |
state pursuant to division (E) of section 2133.08 of the Revised | 1542 |
Code, in accordance with that division; | 1543 |
(y) To hear and determine applications that pertain to the | 1544 |
withholding or withdrawal of nutrition and hydration from certain | 1545 |
patients allegedly in a permanently unconscious state pursuant to | 1546 |
section 2133.09 of the Revised Code, in accordance with that | 1547 |
section; | 1548 |
(z) To hear and determine applications of attending | 1549 |
physicians in accordance with division (B) of section 2133.15 of | 1550 |
the Revised Code; | 1551 |
(aa) To hear and determine actions relative to the use or | 1552 |
continuation of comfort care in connection with certain principals | 1553 |
under durable powers of attorney for health care, declarants under | 1554 |
declarations, or patients in accordance with division (E) of | 1555 |
either section 1337.16 or 2133.12 of the Revised Code; | 1556 |
(bb) To hear and determine applications for an order | 1557 |
relieving an estate from administration under section 2113.03 of | 1558 |
the Revised Code; | 1559 |
(cc) To hear and determine applications for an order granting | 1560 |
a summary release from administration under section 2113.031 of | 1561 |
the Revised Code; | 1562 |
(dd) To hear and determine actions relating to the exercise | 1563 |
of the right of disposition, in accordance with section 2108.90 of | 1564 |
the Revised Code; | 1565 |
(ee) To hear and determine actions relating to the | 1566 |
disinterment and reinterment of human remains under section 517.23 | 1567 |
of the Revised Code; | 1568 |
(ff) To hear and determine petitions for an order for | 1569 |
treatment of a person suffering from alcohol and other drug abuse | 1570 |
filed under section 3793.34 of the Revised Code and to order | 1571 |
treatment of that nature in accordance with, and take other | 1572 |
actions afforded to the court under, sections 3793.31 to 3793.39 | 1573 |
of the Revised Code. | 1574 |
(2) In addition to the exclusive jurisdiction conferred upon | 1575 |
the probate court by division (A)(1) of this section, the probate | 1576 |
court shall have exclusive jurisdiction over a particular subject | 1577 |
matter if both of the following apply: | 1578 |
(a) Another section of the Revised Code expressly confers | 1579 |
jurisdiction over that subject matter upon the probate court. | 1580 |
(b) No section of the Revised Code expressly confers | 1581 |
jurisdiction over that subject matter upon any other court or | 1582 |
agency. | 1583 |
(B)(1) The probate court has concurrent jurisdiction with, | 1584 |
and the same powers at law and in equity as, the general division | 1585 |
of the court of common pleas to issue writs and orders, and to | 1586 |
hear and determine actions as follows: | 1587 |
(a) If jurisdiction relative to a particular subject matter | 1588 |
is stated to be concurrent in a section of the Revised Code or has | 1589 |
been construed by judicial decision to be concurrent, any action | 1590 |
that involves that subject matter; | 1591 |
(b) Any action that involves an inter vivos trust; a trust | 1592 |
created pursuant to section 5815.28 of the Revised Code; a | 1593 |
charitable trust or foundation; subject to divisions (A)(1)(u) and | 1594 |
(z) of this section, a power of attorney, including, but not | 1595 |
limited to, a durable power of attorney; the medical treatment of | 1596 |
a competent adult; or a writ of habeas corpus. | 1597 |
(2) Any action that involves a concurrent jurisdiction | 1598 |
subject matter and that is before the probate court may be | 1599 |
transferred by the probate court, on its order, to the general | 1600 |
division of the court of common pleas. | 1601 |
(C) The probate court has plenary power at law and in equity | 1602 |
to dispose fully of any matter that is properly before the court, | 1603 |
unless the power is expressly otherwise limited or denied by a | 1604 |
section of the Revised Code. | 1605 |
(D) The jurisdiction acquired by a probate court over a | 1606 |
matter or proceeding is exclusive of that of any other probate | 1607 |
court, except when otherwise provided by law. | 1608 |
Sec. 2107.52. (A) As used in this section: | 1609 |
(1) "Class member" means an individual who fails to survive | 1610 |
the testator but who would have taken under a devise in the form | 1611 |
of a class gift had the individual survived the testator. | 1612 |
(2) "Descendant of a grandparent" means an individual who | 1613 |
qualifies as a descendant of a grandparent of the testator or of | 1614 |
the donor of a power of appointment under either of the following: | 1615 |
(a) The rules of construction applicable to a class gift | 1616 |
created in the testator's will if the devise or the exercise of | 1617 |
the power of appointment is in the form of a class gift; | 1618 |
(b) The rules for intestate succession if the devise or the | 1619 |
exercise of the power of appointment is not in the form of a class | 1620 |
gift. | 1621 |
(3) "Devise" means an alternative devise, a devise in the | 1622 |
form of a class gift, or an exercise of a power of appointment. | 1623 |
(4) "Devisee" means any of the following: | 1624 |
(a) A class member if the devise is in the form of a class | 1625 |
gift; | 1626 |
(b) An individual or class member who was deceased at the | 1627 |
time the testator executed the testator's will or an individual or | 1628 |
class member who was then living but who failed to survive the | 1629 |
testator; | 1630 |
(c) An appointee under a power of appointment exercised by | 1631 |
the testator's will. | 1632 |
(5) "Per stirpes" means that the shares of the descendants of | 1633 |
a devisee who does not survive the testator are determined in the | 1634 |
same way they would have been determined under division (A) of | 1635 |
section 2105.06 of the Revised Code if the devisee had died | 1636 |
intestate and unmarried on the date of the testator's death. | 1637 |
(6) "Stepchild" means a child of the surviving, deceased, or | 1638 |
former spouse of the testator or of the donor of a power of | 1639 |
appointment and not of the testator or donor. | 1640 |
(7) "Surviving devisee" or "surviving descendant" means a | 1641 |
devisee or descendant, whichever is applicable, who survives the | 1642 |
testator by at least one hundred twenty hours. | 1643 |
(8) "Testator" includes the donee of a power of appointment | 1644 |
if the power is exercised in the testator's will. | 1645 |
(B)(1) As used in "surviving descendants" in divisions | 1646 |
(B)(2)(a) and (b) of this section, "descendants" means the | 1647 |
descendants of a deceased devisee or class member under the | 1648 |
applicable division who would take under a class gift created in | 1649 |
the testator's will. | 1650 |
(2) Unless a contrary intent appears in the will, if a | 1651 |
devisee fails to survive the testator and is a grandparent, a | 1652 |
descendant of a grandparent, or a stepchild of either the testator | 1653 |
or the donor of a power of appointment exercised by the testator's | 1654 |
will, either of the following applies: | 1655 |
(a) If the devise is not in the form of a class gift and the | 1656 |
deceased devisee leaves surviving descendants, a substitute gift | 1657 |
is created in the devisee's surviving descendants. The surviving | 1658 |
descendants take, per stirpes, the property to which the devisee | 1659 |
would have been entitled had the devisee survived the testator. | 1660 |
(b) If the devise is in the form of a class gift, other than | 1661 |
a devise to "issue," "descendants," "heirs of the body," "heirs," | 1662 |
"next of kin," "relatives," or "family," or a class described by | 1663 |
language of similar import, a substitute gift is created in the | 1664 |
surviving descendants of any deceased devisee. The property to | 1665 |
which the devisees would have been entitled had all of them | 1666 |
survived the testator passes to the surviving devisees and the | 1667 |
surviving descendants of the deceased devisees. Each surviving | 1668 |
devisee takes the share to which the surviving devisee would have | 1669 |
been entitled had the deceased devisees survived the testator. | 1670 |
Each deceased devisee's surviving descendants who are substituted | 1671 |
for the deceased devisee take, per stirpes, the share to which the | 1672 |
deceased devisee would have been entitled had the deceased devisee | 1673 |
survived the testator. For purposes of division (B)(2)(b) of this | 1674 |
section, "deceased devisee" means a class member who failed to | 1675 |
survive the testator by at least one hundred twenty hours and left | 1676 |
one or more surviving descendants. | 1677 |
(C) For purposes of this section, each of the following | 1678 |
applies: | 1679 |
(1) Attaching the word "surviving" or "living" to a devise, | 1680 |
such as a gift "to my surviving (or living) children," is not, in | 1681 |
the absence of other language in the will or other evidence to the | 1682 |
contrary, a sufficient indication of an intent to negate the | 1683 |
application of division (B) of this section. | 1684 |
(2) Attaching other words of survivorship to a devise, such | 1685 |
as "to my child, if my child survives me," is, in the absence of | 1686 |
other language in the will or other evidence to the contrary, a | 1687 |
sufficient indication of an intent to negate the application of | 1688 |
division (B) of this section. | 1689 |
(3) A residuary clause is not a sufficient indication of an | 1690 |
intent to negate the application of division (B) of this section | 1691 |
unless the will specifically provides that upon lapse or failure | 1692 |
the nonresiduary devise, or nonresiduary devises in general, pass | 1693 |
under the residuary clause. | 1694 |
(4) Unless the language creating a power of appointment | 1695 |
expressly excludes the substitution of the descendants of an | 1696 |
appointee for the appointee, a surviving descendant of a deceased | 1697 |
appointee of a power of appointment may be substituted for the | 1698 |
appointee under this section, whether or not the descendant is an | 1699 |
object of the power of appointment. | 1700 |
(D) Except as provided in division (A), (B), or (C) of this | 1701 |
section, each of the following applies: | 1702 |
(1) A devise, other than a residuary devise, that fails for | 1703 |
any reason becomes a part of the residue. | 1704 |
(2) If the residue is devised to two or more persons, the | 1705 |
share of a residuary devisee that fails for any reason passes to | 1706 |
the other residuary devisee, or to other residuary devisees in | 1707 |
proportion to the interest of each in the remaining part of the | 1708 |
residue. | 1709 |
(3) If a residuary devise fails for any reason in its | 1710 |
entirety, the residue passes by intestate succession. | 1711 |
(E) This section applies only to outright devises and | 1712 |
appointments. Devises and appointments in trust, including to a | 1713 |
testamentary trust, are subject to section 5808.19 of the Revised | 1714 |
Code. | 1715 |
(F) This section applies to wills of decedents who die on or | 1716 |
after the effective date of this section. | 1717 |
Sec. 2109.21. (A) An administrator, special administrator, | 1718 |
administrator de bonis non, or administrator with the will annexed | 1719 |
shall be a resident of this state and shall be removed on proof | 1720 |
that the administrator is no longer a resident of this state. | 1721 |
(B)(1) To qualify for appointment as executor or trustee, an | 1722 |
executor or a trustee named in a will or nominated in accordance | 1723 |
with any power of nomination conferred in a will, may be a | 1724 |
resident of this state or, as provided in this division, a | 1725 |
nonresident of this state. To qualify for appointment, a | 1726 |
nonresident executor or trustee named in, or nominated pursuant | 1727 |
to, a will shall be an individual who is related to the maker of | 1728 |
the will by consanguinity or affinity, or a person who resides in | 1729 |
a state that has statutes or rules that authorize the appointment | 1730 |
of a nonresident person who is not related to the maker of a will | 1731 |
by consanguinity or affinity, as an executor or trustee when named | 1732 |
in, or nominated pursuant to, a will. No such executor or trustee | 1733 |
shall be refused appointment or removed solely because the | 1734 |
executor or trustee is not a resident of this state. | 1735 |
The court may require that a nonresident executor or trustee | 1736 |
named in, or nominated pursuant to, a will assure that all of the | 1737 |
assets of the decedent that are in the county at the time of the | 1738 |
death of the decedent will remain in the county until distribution | 1739 |
or until the court determines that the assets may be removed from | 1740 |
the county. | 1741 |
(2) In accordance with this division and section 2129.08 of | 1742 |
the Revised Code, the court shall appoint as an ancillary | 1743 |
administrator a person who is named in the will of a nonresident | 1744 |
decedent, or who is nominated in accordance with any power of | 1745 |
nomination conferred in the will of a nonresident decedent, as a | 1746 |
general executor of the decedent's estate or as executor of the | 1747 |
portion of the decedent's estate located in this state, whether or | 1748 |
not the person so named or nominated is a resident of this state. | 1749 |
To qualify for appointment as an ancillary administrator, a | 1750 |
person who is not a resident of this state and who is named or | 1751 |
nominated as described in this division, shall be an individual | 1752 |
who is related to the maker of the will by consanguinity or | 1753 |
affinity, or a person who resides in a state that has statutes or | 1754 |
rules that authorize the appointment of a nonresident of that | 1755 |
state who is not related to the maker of a will by consanguinity | 1756 |
or affinity, as an ancillary administrator when the nonresident is | 1757 |
named in a will or nominated in accordance with any power of | 1758 |
nomination conferred in a will. If a person who is not a resident | 1759 |
of this state and who is named or nominated as described in this | 1760 |
division so qualifies for appointment as an ancillary | 1761 |
administrator and if the provisions of section 2129.08 of the | 1762 |
Revised Code are satisfied, the court shall not refuse to appoint | 1763 |
the person, and shall not remove the person, as ancillary | 1764 |
administrator solely because the person is not a resident of this | 1765 |
state. | 1766 |
The court may require that an ancillary administrator who is | 1767 |
not a resident of this state and who is named or nominated as | 1768 |
described in this division, assure that all of the assets of the | 1769 |
decedent that are in the county at the time of the death of the | 1770 |
decedent will remain in the county until distribution or until the | 1771 |
court determines that the assets may be removed from the county. | 1772 |
(C)(1) A guardian shall be a resident of this state, except | 1773 |
that the court may appoint a nonresident of this state as a | 1774 |
guardian if any of the following applies: | 1775 |
(a) The nonresident is named in a will by a parent of a | 1776 |
minor. | 1777 |
(b) The nonresident is selected by a minor over the age of | 1778 |
fourteen years as provided by section 2111.12 of the Revised Code. | 1779 |
(c) The nonresident is nominated in or pursuant to a durable | 1780 |
power of attorney | 1781 |
1782 | |
division (A) of section 2111.121 of the Revised Code. | 1783 |
(2) A guardian, other than a guardian named in a will by a | 1784 |
parent of a minor, selected by a minor over the age of fourteen | 1785 |
years, or nominated in or pursuant to a durable power of attorney | 1786 |
or writing described in division (C)(1)(c) of this section, may be | 1787 |
removed on proof that the guardian is no longer a resident of this | 1788 |
state. | 1789 |
(D) Any fiduciary, whose residence qualifications are not | 1790 |
defined in this section, shall be a resident of this state, and | 1791 |
shall be removed on proof that the fiduciary is no longer a | 1792 |
resident of this state. | 1793 |
(E) Any fiduciary, in order to assist in the carrying out of | 1794 |
the fiduciary's fiduciary duties, may employ agents who are not | 1795 |
residents of the county or of this state. | 1796 |
Sec. 2111.02. (A) When found necessary, the probate court on | 1797 |
its own motion or on application by any interested party shall | 1798 |
appoint, subject to divisions (C) and (D) of this section and to | 1799 |
section 2109.21 and division (B) of section 2111.121 of the | 1800 |
Revised Code, a guardian of the person, the estate, or both, of a | 1801 |
minor or incompetent, provided the person for whom the guardian is | 1802 |
to be appointed is a resident of the county or has a legal | 1803 |
settlement in the county and, except in the case of a minor, has | 1804 |
had the opportunity to have the assistance of counsel in the | 1805 |
proceeding for the appointment of such guardian. An interested | 1806 |
party includes, but is not limited to, a person nominated in a | 1807 |
durable power of attorney | 1808 |
section
| 1809 |
described in division (A) of section 2111.121 of the Revised Code. | 1810 |
Except when the guardian of an incompetent is an agency under | 1811 |
contract with the department of developmental disabilities for the | 1812 |
provision of protective services under sections 5123.55 to 5123.59 | 1813 |
of the Revised Code, the guardian of an incompetent, by virtue of | 1814 |
such appointment, shall be the guardian of the minor children of | 1815 |
the guardian's ward, unless the court appoints some other person | 1816 |
as their guardian. | 1817 |
When the primary purpose of the appointment of a guardian is, | 1818 |
or was, the collection, disbursement, or administration of moneys | 1819 |
awarded by the veterans administration to the ward, or assets | 1820 |
derived from such moneys, no court costs shall be charged in the | 1821 |
proceeding for the appointment or in any subsequent proceedings | 1822 |
made in pursuance of the appointment, unless the value of the | 1823 |
estate, including the moneys then due under the veterans | 1824 |
administration award, exceeds one thousand five hundred dollars. | 1825 |
(B)(1) If the probate court finds it to be in the best | 1826 |
interest of an incompetent or minor, it may appoint pursuant to | 1827 |
divisions (A) and (C) of this section, on its own motion or on | 1828 |
application by an interested party, a limited guardian with | 1829 |
specific limited powers. The sections of the Revised Code, rules, | 1830 |
and procedures governing guardianships apply to a limited | 1831 |
guardian, except that the order of appointment and letters of | 1832 |
authority of a limited guardian shall state the reasons for, and | 1833 |
specify the limited powers of, the guardian. The court may appoint | 1834 |
a limited guardian for a definite or indefinite period. An | 1835 |
incompetent or minor for whom a limited guardian has been | 1836 |
appointed retains all of the incompetent's or minor's rights in | 1837 |
all areas not affected by the court order appointing the limited | 1838 |
guardian. | 1839 |
(2) If a guardian appointed pursuant to division (A) of this | 1840 |
section is temporarily or permanently removed or resigns, and if | 1841 |
the welfare of the ward requires immediate action, at any time | 1842 |
after the removal or resignation, the probate court may appoint, | 1843 |
ex parte and with or without notice to the ward or interested | 1844 |
parties, an interim guardian for a maximum period of fifteen days. | 1845 |
If the court appoints the interim guardian ex parte or without | 1846 |
notice to the ward, the court, at its first opportunity, shall | 1847 |
enter upon its journal with specificity the reason for acting ex | 1848 |
parte or without notice, and, as soon as possible, shall serve | 1849 |
upon the ward a copy of the order appointing the interim guardian. | 1850 |
For good cause shown, after notice to the ward and interested | 1851 |
parties and after hearing, the court may extend an interim | 1852 |
guardianship for a specified period, but not to exceed an | 1853 |
additional thirty days. | 1854 |
(3) If a minor or incompetent has not been placed under a | 1855 |
guardianship pursuant to division (A) of this section and if an | 1856 |
emergency exists, and if it is reasonably certain that immediate | 1857 |
action is required to prevent significant injury to the person or | 1858 |
estate of the minor or incompetent, at any time after it receives | 1859 |
notice of the emergency, the court, ex parte, may issue any order | 1860 |
that it considers necessary to prevent injury to the person or | 1861 |
estate of the minor or incompetent, or may appoint an emergency | 1862 |
guardian for a maximum period of seventy-two hours. A written copy | 1863 |
of any order issued by a court under this division shall be served | 1864 |
upon the incompetent or minor as soon as possible after its | 1865 |
issuance. Failure to serve such an order after its issuance or | 1866 |
prior to the taking of any action under its authority does not | 1867 |
invalidate the order or the actions taken. The powers of an | 1868 |
emergency guardian shall be specified in the letters of | 1869 |
appointment, and shall be limited to those powers that are | 1870 |
necessary to prevent injury to the person or estate of the minor | 1871 |
or incompetent. If the court acts ex parte or without notice to | 1872 |
the minor or incompetent, the court, at its first opportunity, | 1873 |
shall enter upon its journal a record of the case and, with | 1874 |
specificity, the reason for acting ex parte or without notice. For | 1875 |
good cause shown, after notice to the minor or incompetent and | 1876 |
interested parties, and after hearing, the court may extend an | 1877 |
emergency guardianship for a specified period, but not to exceed | 1878 |
an additional thirty days. | 1879 |
(C) Prior to the appointment of a guardian or limited | 1880 |
guardian under division (A) or (B)(1) of this section, the court | 1881 |
shall conduct a hearing on the matter of the appointment. The | 1882 |
hearing shall be conducted in accordance with all of the | 1883 |
following: | 1884 |
(1) The proposed guardian or limited guardian shall appear at | 1885 |
the hearing and, if appointed, shall swear under oath that the | 1886 |
proposed guardian or limited guardian has made and will continue | 1887 |
to make diligent efforts to file a true inventory in accordance | 1888 |
with section 2111.14 of the Revised Code and find and report all | 1889 |
assets belonging to the estate of the ward and that the proposed | 1890 |
guardian or limited guardian faithfully and completely will | 1891 |
fulfill the other duties of guardian, including the filing of | 1892 |
timely and accurate reports and accountings; | 1893 |
(2) If the hearing is conducted by a referee, the procedures | 1894 |
set forth in Civil Rule 53 shall be followed; | 1895 |
(3) If the hearing concerns the appointment of a guardian or | 1896 |
limited guardian for an alleged incompetent, the burden of proving | 1897 |
incompetency shall be by clear and convincing evidence; | 1898 |
(4) Upon request of the applicant, the alleged incompetent | 1899 |
for whom the appointment is sought or the alleged incompetent's | 1900 |
counsel, or any interested party, a recording or record of the | 1901 |
hearing shall be made; | 1902 |
(5) Evidence of a less restrictive alternative to | 1903 |
guardianship may be introduced, and when introduced, shall be | 1904 |
considered by the court; | 1905 |
(6) The court may deny a guardianship based upon a finding | 1906 |
that a less restrictive alternative to guardianship exists; | 1907 |
(7) If the hearing concerns the appointment of a guardian or | 1908 |
limited guardian for an alleged incompetent, the alleged | 1909 |
incompetent has all of the following rights: | 1910 |
(a) The right to be represented by independent counsel of the | 1911 |
alleged incompetent's choice; | 1912 |
(b) The right to have a friend or family member of the | 1913 |
alleged incompetent's choice present; | 1914 |
(c) The right to have evidence of an independent expert | 1915 |
evaluation introduced; | 1916 |
(d) If the alleged incompetent is indigent, upon the alleged | 1917 |
incompetent's request: | 1918 |
(i) The right to have counsel and an independent expert | 1919 |
evaluator appointed at court expense; | 1920 |
(ii) If the guardianship, limited guardianship, or standby | 1921 |
guardianship decision is appealed, the right to have counsel | 1922 |
appointed and necessary transcripts for appeal prepared at court | 1923 |
expense. | 1924 |
(D)(1) When a person has been nominated to be a guardian of | 1925 |
the estate of a minor in or pursuant to a durable power of | 1926 |
attorney | 1927 |
1337.24 of the Revised Code or a writing as described in division | 1928 |
(A) of section 2111.121 of the Revised Code, the person nominated | 1929 |
has preference in appointment over a person selected by the minor. | 1930 |
A person who has been nominated to be a guardian of the person of | 1931 |
a minor in or pursuant to a durable power of attorney or writing | 1932 |
of that nature does not have preference in appointment over a | 1933 |
person selected by the minor, but the probate court may appoint | 1934 |
the person named in the durable power of attorney or the writing, | 1935 |
the person selected by the minor, or another person as guardian of | 1936 |
the person of the minor. | 1937 |
(2) A person nominated as a guardian of an incompetent adult | 1938 |
child pursuant to a durable power of attorney under section | 1939 |
1940 | |
Code shall have preference in appointment over a person applying | 1941 |
to be guardian if the person nominated is competent, suitable, and | 1942 |
willing to accept the appointment, and if the incompetent adult | 1943 |
child does not have a spouse or an adult child and has not | 1944 |
designated a guardian prior to the court finding the adult child | 1945 |
incompetent. | 1946 |
Sec. 2111.12. (A) A minor over the age of fourteen years may | 1947 |
select a guardian who shall be appointed if a suitable person. If | 1948 |
1949 | |
suitable person, an appointment may be made without reference to | 1950 |
the minor's wishes. The minor shall not select one person to be | 1951 |
the guardian of the minor's estate only and another to be the | 1952 |
guardian of the person only, unless the court | 1953 |
is of the opinion that the interests of | 1954 |
thereby be promoted. | 1955 |
(B) A surviving parent by last will in writing may appoint a | 1956 |
guardian for any of the surviving parent's children, whether born | 1957 |
at the time of making the will or afterward, to continue during | 1958 |
the minority of the child or for a less time. | 1959 |
When the father or mother of a minor names a person as | 1960 |
guardian of the estate of | 1961 |
named shall have preference in appointment over the person | 1962 |
selected by
| 1963 |
guardian of the person of | 1964 |
in appointment over the person selected by | 1965 |
1966 | |
the will, the person selected by the minor, or some other person. | 1967 |
Whenever a testamentary guardian is appointed, the | 1968 |
testamentary guardian's duties, powers, and liabilities in all | 1969 |
other respects shall be governed by the law regulating guardians | 1970 |
not appointed by will. | 1971 |
(C) A parent pursuant to a durable power of attorney | 1972 |
1973 | |
writing as described in division (A) of section 2111.121 of the | 1974 |
Revised Code may nominate a person to be a guardian for one or | 1975 |
more of the parent's minor children, whether born at the time of | 1976 |
the making of the petition or afterward. | 1977 |
Sec. 2111.121. (A) A person may nominate in a writing, as | 1978 |
described in this division, another person to be the guardian of | 1979 |
the nominator's person, estate, or both or the guardian of the | 1980 |
person, the estate, or both, of one or more of the nominator's | 1981 |
minor or incompetent adult children, whether born at the time of | 1982 |
the execution of the writing or afterward, subject to notice and a | 1983 |
hearing pursuant to section 2111.02 of the Revised Code. The | 1984 |
nomination is for consideration by a court if proceedings for the | 1985 |
appointment of a guardian of the person, the estate, or both, for | 1986 |
the person making the nomination or if proceedings for the | 1987 |
appointment of a guardian as the guardian of the person, the | 1988 |
estate, or both of one or more of the nominator's minor or | 1989 |
incompetent adult children are commenced at a later time. The | 1990 |
person may authorize, in a writing of that nature, the person | 1991 |
nominated as guardian to nominate a successor guardian for | 1992 |
consideration by a court. The person also may direct, in a writing | 1993 |
of that nature, that bond be waived for a person nominated as | 1994 |
guardian in it or nominated as a successor guardian in accordance | 1995 |
with an authorization in it. | 1996 |
To be effective as a nomination, the writing shall be signed | 1997 |
by the person making the nomination in the presence of two | 1998 |
witnesses; signed by the witnesses; contain, immediately prior to | 1999 |
their signatures, an attestation of the witnesses that the person | 2000 |
making the nomination signed the writing in their presence; and be | 2001 |
acknowledged by the person making the nomination before a notary | 2002 |
public. | 2003 |
(B) If a person has nominated, in a writing as described in | 2004 |
division (A) of this section or in a durable power of attorney
| 2005 |
2006 | |
Revised Code, another person to be the guardian of the nominator's | 2007 |
person, estate, or both, and proceedings for the appointment of a | 2008 |
guardian for the person are commenced at a later time, the court | 2009 |
involved shall appoint the person nominated as guardian in the | 2010 |
writing or durable power of attorney most recently executed if the | 2011 |
person nominated is competent, suitable, and willing to accept the | 2012 |
appointment. If the writing or durable power of attorney contains | 2013 |
a waiver of bond, the court shall waive bond of the person | 2014 |
nominated as guardian unless it is of the opinion that the | 2015 |
interest of the trust demands it. | 2016 |
(C) Nomination of a person as a guardian or successor | 2017 |
guardian of the person, the estate, or both of one or more of the | 2018 |
nominator's minor or incompetent adult children under division (A) | 2019 |
of this section, and any subsequent appointment of the guardian or | 2020 |
successor guardian as guardian under section 2111.02 of the | 2021 |
Revised Code, does not vacate the jurisdiction of any other court | 2022 |
that previously may have exercised jurisdiction over the person of | 2023 |
the minor or incompetent adult child. | 2024 |
(D) The writing containing the nomination of a person to be | 2025 |
the guardian of the person, the estate, or both of one or more of | 2026 |
the nominator's minor or incompetent adult children under division | 2027 |
(A) of this section may be filed with the probate court for | 2028 |
safekeeping, and the probate court shall designate the nomination | 2029 |
as the nomination of a standby guardian. | 2030 |
Sec. 3793.31. As used in sections 3793.31 to 3793.39 of the | 2031 |
Revised Code: | 2032 |
(A) "Alcohol and other drug abuse" means alcoholism or drug | 2033 |
addiction. | 2034 |
(B) "Another drug" means a controlled substance as defined in | 2035 |
section 3719.01 of the Revised Code or a harmful intoxicant as | 2036 |
defined in section 2925.01 of the Revised Code. | 2037 |
(C) "Board of alcohol, drug addiction, and mental health | 2038 |
services" means a board of alcohol, drug addiction, and mental | 2039 |
health services established under section 340.02 or 340.021 of the | 2040 |
Revised Code. | 2041 |
(D) "Danger" or "threat of danger to self, family, or others" | 2042 |
means substantial physical harm or threat of substantial physical | 2043 |
harm upon self, family, or others. | 2044 |
(E) "Hospital" has the same meaning as in section 3701.01 or | 2045 |
3727.01 of the Revised Code but does not include either a hospital | 2046 |
operated by the department of mental health or an inpatient unit | 2047 |
licensed by the department. | 2048 |
(F) "Intoxicated" means being under the influence of alcohol, | 2049 |
another drug, or both alcohol and another drug and, as a result, | 2050 |
having a significantly impaired ability to function. | 2051 |
(G) "Petitioner" means a person who institutes a proceeding | 2052 |
under sections 3793.32 to 3793.39 of the Revised Code. | 2053 |
(H) "Probate court" means the probate division of the court | 2054 |
of common pleas. | 2055 |
(I) "Qualified health professional" means a person that is | 2056 |
properly credentialed or licensed to conduct a drug and alcohol | 2057 |
assessment and diagnosis under Ohio law. | 2058 |
(J) "Residence" means the legal residence of a person as | 2059 |
determined by applicable principles governing conflicts of law. | 2060 |
(K) "Respondent" means a person alleged in a petition filed | 2061 |
or hearing under sections 3793.32 to 3793.39 of the Revised Code | 2062 |
to be a person who is suffering from alcohol and other drug abuse | 2063 |
and who may be ordered under those sections to undergo treatment. | 2064 |
(L) "Treatment" means services and programs for the care and | 2065 |
rehabilitation of intoxicated persons and persons suffering from | 2066 |
alcohol and other drug abuse. "Treatment" includes residential | 2067 |
treatment, a halfway house setting, and an intensive outpatient or | 2068 |
outpatient level of care. | 2069 |
Sec. 3793.32. A probate court may order involuntary treatment | 2070 |
for a person suffering from alcohol and other drug abuse pursuant | 2071 |
to the procedures set forth in sections 3793.31 to 3793.39 of the | 2072 |
Revised Code. | 2073 |
Sec. 3793.33. No person shall be ordered to undergo treatment | 2074 |
under sections 3793.31 to 3793.39 of the Revised Code unless all | 2075 |
of the following apply to that person: | 2076 |
(A) The person suffers from alcohol and other drug abuse. | 2077 |
(B) The person presents an imminent danger or imminent threat | 2078 |
of danger to self, family, or others as a result of alcohol and | 2079 |
other drug abuse, or there exists a substantial likelihood of such | 2080 |
a threat in the near future. | 2081 |
(C) The person can reasonably benefit from treatment. | 2082 |
Sec. 3793.34. (A) A person may initiate proceedings for | 2083 |
treatment for an individual suffering from alcohol and other drug | 2084 |
abuse by filing a verified petition in the probate court and | 2085 |
paying a filing fee in the same amount, if any, that is charged | 2086 |
for the filing under section 5122.11 of the Revised Code of an | 2087 |
affidavit seeking the hospitalization of a person. The petition | 2088 |
and all subsequent court documents shall be entitled: "In the | 2089 |
interest of (name of respondent)." A spouse, relative, or guardian | 2090 |
of the individual concerning whom the petition is filed shall file | 2091 |
the petition. | 2092 |
(B) A petition filed under division (A) of this section shall | 2093 |
set forth all of the following: | 2094 |
(1) The petitioner's relationship to the respondent; | 2095 |
(2) The respondent's name, residence address, and current | 2096 |
location, if known; | 2097 |
(3) The name and residence of the respondent's parents, if | 2098 |
living and if known, or of the respondent's legal guardian, if any | 2099 |
and if known; | 2100 |
(4) The name and residence of the respondent's spouse, if any | 2101 |
and if known; | 2102 |
(5) The name and residence of the person having custody of | 2103 |
the respondent, if any, or if no such person is known, the name | 2104 |
and residence of a near relative or a statement that the person is | 2105 |
unknown; | 2106 |
(6) The petitioner's belief, including the factual basis for | 2107 |
the belief, that the respondent is suffering from alcohol and | 2108 |
other drug abuse and presents an imminent danger or imminent | 2109 |
threat of danger to self, family, or others if not treated for | 2110 |
alcohol or other drug abuse. | 2111 |
(C)(1) Any petition filed pursuant to divisions (A) and (B) | 2112 |
of this section shall be accompanied by a certificate of a | 2113 |
physician who has examined the respondent within two days prior to | 2114 |
the day that the petition is filed in the probate court. The | 2115 |
physician shall be authorized to practice medicine and surgery or | 2116 |
osteopathic medicine and surgery under Chapter 4731. of the | 2117 |
Revised Code. The physician's certificate shall set forth the | 2118 |
physician's findings in support of the need to treat the | 2119 |
respondent for alcohol or other drug abuse. The certificate shall | 2120 |
indicate if the respondent presents an imminent danger or imminent | 2121 |
threat of danger to self, family, or others if not treated. | 2122 |
Further, the certificate shall indicate the type and length of | 2123 |
treatment required and if the respondent can reasonably benefit | 2124 |
from treatment. If the physician's certificate indicates that | 2125 |
inpatient treatment is required, the certificate shall identify | 2126 |
any inpatient facilities known to the physician that are able and | 2127 |
willing to provide the recommended inpatient treatment. | 2128 |
If the respondent refuses to undergo an examination with a | 2129 |
physician concerning the respondent's possible need for treatment | 2130 |
for alcohol or other drug abuse, the petition shall state that the | 2131 |
respondent has refused all requests made by the petitioner to | 2132 |
undergo a physician's examination. In that case, the petitioner | 2133 |
shall not be required to provide a physician's certificate with | 2134 |
the petition. | 2135 |
(2) Any petition filed pursuant to divisions (A) and (B) of | 2136 |
this section shall contain a statement that the petitioner has | 2137 |
arranged for treatment of the respondent. Further, the petition | 2138 |
shall be accompanied by a statement from the person or facility | 2139 |
who has agreed to provide the treatment that verifies that the | 2140 |
person or facility has agreed to provide the treatment and the | 2141 |
estimated cost of the treatment. | 2142 |
(D) Any petition filed pursuant to divisions (A) and (B) of | 2143 |
this section shall be accompanied by both of the following: | 2144 |
(1) A security deposit to be deposited with the clerk of the | 2145 |
probate court that will cover half of the estimated cost of | 2146 |
treatment of the respondent; | 2147 |
(2) A guarantee, signed by the petitioner or another person | 2148 |
authorized to file the petition obligating the guarantor to pay | 2149 |
the costs of the examinations of the respondent conducted by the | 2150 |
physician and qualified health professional under division (B)(5) | 2151 |
of section 3793.35 of the Revised Code, the costs of the | 2152 |
respondent that are associated with a hearing conducted in | 2153 |
accordance with section 3793.35 of the Revised Code and that the | 2154 |
court determines to be appropriate, and the costs of any treatment | 2155 |
ordered by the court. | 2156 |
Sec. 3793.35. (A) Upon receipt of a petition filed under | 2157 |
section 3793.34 of the Revised Code and the payment of the | 2158 |
appropriate filing fee, if any, the probate court shall examine | 2159 |
the petitioner under oath as to the contents of the petition. | 2160 |
(B) If, after reviewing the allegations contained in the | 2161 |
petition and examining the petitioner under oath, it appears to | 2162 |
the probate court that there is probable cause to believe the | 2163 |
respondent may reasonably benefit from treatment, the court shall | 2164 |
do all of the following: | 2165 |
(1) Schedule a hearing to be held within seven days to | 2166 |
determine if there is clear and convincing evidence that the | 2167 |
respondent may reasonably benefit from treatment for alcohol and | 2168 |
other drug abuse; | 2169 |
(2) Notify the respondent, the legal guardian, if any and if | 2170 |
known, and the spouse, parents, or nearest relative or friend of | 2171 |
the respondent concerning the allegations and contents of the | 2172 |
petition and of the date and purpose of the hearing; | 2173 |
(3) Notify the respondent that the respondent may retain | 2174 |
counsel and, if the person is unable to obtain an attorney, that | 2175 |
the respondent may be represented by court-appointed counsel at | 2176 |
public expense if the person is indigent. Upon the appointment of | 2177 |
an attorney to represent an indigent respondent, the court shall | 2178 |
notify the respondent of the name, address, and telephone number | 2179 |
of the attorney appointed to represent the respondent. | 2180 |
(4) Notify the respondent that the court shall cause the | 2181 |
respondent to be examined not later than twenty-four hours before | 2182 |
the hearing date by a physician for the purpose of a physical | 2183 |
examination and by a qualified health professional for the purpose | 2184 |
of a drug and alcohol addiction assessment and diagnosis. In | 2185 |
addition, the court shall notify the respondent that the | 2186 |
respondent may have an independent expert evaluation of the | 2187 |
person's physical and mental condition conducted at the | 2188 |
respondent's own expense. | 2189 |
(5) Cause the respondent to be examined not later than | 2190 |
twenty-four hours before the hearing date by a physician for the | 2191 |
purpose of a physical examination and by a qualified health | 2192 |
professional for the purpose of a drug and alcohol addiction | 2193 |
assessment and diagnosis; | 2194 |
(6) Conduct the hearing. | 2195 |
(C) The physician and qualified health professional who | 2196 |
examine the respondent pursuant to division (B)(5) of this section | 2197 |
or who are obtained by the respondent at the respondent's own | 2198 |
expense shall certify their findings to the court within | 2199 |
twenty-four hours of the examinations. The findings of each | 2200 |
qualified health professional shall include a recommendation for | 2201 |
treatment if the qualified health professional determines that | 2202 |
treatment is necessary. | 2203 |
(D)(1) If upon completion of the hearing held under this | 2204 |
section the probate court finds by clear and convincing evidence | 2205 |
that the respondent may reasonably benefit from treatment, the | 2206 |
court may order the treatment after considering the qualified | 2207 |
health professionals' recommendations for treatment that have been | 2208 |
submitted to the court under division (C) of this section. If the | 2209 |
court orders the treatment under this division, the court shall | 2210 |
order the treatment to be provided through an alcohol and drug | 2211 |
addiction program certified under section 3793.06 of the Revised | 2212 |
Code or by an individual licensed or certified by the state | 2213 |
medical board under Chapter 4731. of the Revised Code, the | 2214 |
chemical dependency professionals board under Chapter 4758. of the | 2215 |
Revised Code, the counselor, social worker, and marriage and | 2216 |
family therapist board under Chapter 4757. of the Revised Code, or | 2217 |
a similar board of another state authorized to provide substance | 2218 |
abuse treatment. | 2219 |
(2) Failure of a respondent to undergo and complete any | 2220 |
treatment ordered pursuant to this division is contempt of court. | 2221 |
Any alcohol and drug addiction program or person providing | 2222 |
treatment under this division shall notify the probate court of a | 2223 |
respondent's failure to undergo or complete the ordered treatment. | 2224 |
(E) If, at any time after a petition is filed under section | 2225 |
3793.34 of the Revised Code, the probate court finds that there is | 2226 |
not probable cause to continue treatment or if the petitioner | 2227 |
withdraws the petition, then the court shall dismiss the | 2228 |
proceedings against the respondent. | 2229 |
Sec. 3793.36. (A) Following an examination by a qualified | 2230 |
health professional and a certification by that professional that | 2231 |
the person meets the criteria specified in section 3793.33 of the | 2232 |
Revised Code, a probate court may order the person hospitalized | 2233 |
for a period not to exceed seventy-two hours if the court finds by | 2234 |
clear and convincing evidence that the person presents an imminent | 2235 |
threat of danger to self, family, or others as a result of alcohol | 2236 |
and other drug abuse. However, if the hearing to be held under | 2237 |
section 3793.35 of the Revised Code will not be held within | 2238 |
seventy-two hours, the court may order the person hospitalized | 2239 |
until the hearing. In making its order, the court shall inform the | 2240 |
person that the person may immediately make a reasonable number of | 2241 |
telephone calls or use other reasonable means to contact an | 2242 |
attorney, a licensed physician, or a qualified health | 2243 |
professional, to contact any other person or persons to secure | 2244 |
representation by counsel, or to obtain medical or psychological | 2245 |
assistance and that the person will be provided assistance in | 2246 |
making calls if the assistance is needed and requested. | 2247 |
(B) Any person who has been admitted to a hospital under | 2248 |
division (A) of this section shall be released from the hospital | 2249 |
immediately upon the expiration of the time period established by | 2250 |
the court for the hospitalization. | 2251 |
(C) No person ordered hospitalized under this section shall | 2252 |
be held in jail pending transportation to the hospital or | 2253 |
evaluation unless the probate court previously has found the | 2254 |
person to be in contempt of court for either failure to undergo | 2255 |
treatment or failure to appear at the evaluation ordered pursuant | 2256 |
to section 3793.35 of the Revised Code. | 2257 |
Sec. 3793.37. When a probate court is authorized to issue an | 2258 |
order that the respondent be transported to a hospital, the court | 2259 |
may issue a summons. If the respondent fails to attend an | 2260 |
examination scheduled before the hearing under section 3793.35 of | 2261 |
the Revised Code, the court shall issue a summons. A summons so | 2262 |
issued shall be directed to the respondent and shall command the | 2263 |
respondent to appear at a time and place specified in the summons. | 2264 |
If a respondent who has been summoned fails to appear at the | 2265 |
hospital or the examination, the probate court may order the | 2266 |
sheriff or any other peace officer to transport the respondent to | 2267 |
a hospital on the list provided under section 3793.38 of the | 2268 |
Revised Code for treatment. The sheriff or any other peace | 2269 |
officer, upon agreement of a person authorized by the peace | 2270 |
officer, may authorize a board of alcohol, drug addiction, and | 2271 |
mental health services, a private agency under contract with a | 2272 |
board of alcohol, drug addiction, and mental health services, or | 2273 |
an ambulance service designated by a board of alcohol, drug | 2274 |
addiction, and mental health services to transport the respondent | 2275 |
to the hospital. The transportation costs of the sheriff, other | 2276 |
peace officer, ambulance service, or other private agency under | 2277 |
contract with the board of alcohol, drug addiction, and mental | 2278 |
health services shall be included in the costs of treatment for | 2279 |
alcohol and other drug abuse to be paid by the petitioner. | 2280 |
Sec. 3793.38. Each board of alcohol, drug addiction, and | 2281 |
mental health services on at least an annual basis shall submit | 2282 |
each of the following lists to the clerk of the probate court in | 2283 |
each county served by the board: | 2284 |
(A) A list of all hospitals in the counties served by the | 2285 |
board that are able and willing to take respondents ordered to | 2286 |
undergo seventy-two hours of treatment and observation pursuant to | 2287 |
section 3793.36 of the Revised Code; | 2288 |
(B) A list of hospitals and treatment providers in the | 2289 |
counties served by the board that are able and willing to provide | 2290 |
treatment for alcohol and other drug abuse ordered pursuant to | 2291 |
section 3793.35 of the Revised Code. | 2292 |
Sec. 3793.39. Sections 3793.12, 3793.13, and 3793.14 of the | 2293 |
Revised Code apply to a person who is ordered to undergo treatment | 2294 |
under sections 3793.31 to 3793.39 of the Revised Code. | 2295 |
Sec. 5301.071. No instrument conveying real | 2296 |
or any interest | 2297 |
office of the county recorder of the county within this state in | 2298 |
which | 2299 |
considered defective nor shall the validity of | 2300 |
conveyance be affected because of any of the following: | 2301 |
(A) The dower interest of the spouse of any grantor was not | 2302 |
specifically released, but | 2303 |
instrument in the manner provided in section 5301.01 of the | 2304 |
Revised Code. | 2305 |
(B) The officer taking the acknowledgment of | 2306 |
instrument having an official seal did not affix | 2307 |
the certificate of acknowledgment. | 2308 |
(C) The certificate of acknowledgment is not on the same | 2309 |
sheet of paper as the instrument. | 2310 |
(D) The executor, administrator, guardian, assignee, or | 2311 |
trustee making | 2312 |
individually instead of in | 2313 |
capacity. | 2314 |
(E)(1) The grantor or grantee of the instrument is a trust | 2315 |
rather than the trustee or trustees of the trust if the trust | 2316 |
named as grantor or grantee has been duly created under the laws | 2317 |
of the state of its existence at the time of the conveyance and a | 2318 |
memorandum of trust that complies with section 5301.255 of the | 2319 |
Revised Code and contains a description of the real property | 2320 |
conveyed by that instrument is recorded in the office of the | 2321 |
county recorder in which the instrument of conveyance is recorded. | 2322 |
Upon compliance with division (E)(1) of this section, a conveyance | 2323 |
to a trust shall be considered to be a conveyance to the trustee | 2324 |
or trustees of the trust in furtherance of the manifest intention | 2325 |
of the parties. | 2326 |
(2) Except as otherwise provided in division (E)(2) of this | 2327 |
section, division (E)(1) of this section shall be given | 2328 |
retroactive effect to the fullest extent permitted under section | 2329 |
28 of Article II, Ohio Constitution. Division (E) of this section | 2330 |
shall not be given retroactive or curative effect if to do so | 2331 |
would invalidate or supersede any instrument that conveys real | 2332 |
property, or any interest in the real property, recorded in the | 2333 |
office of the county recorder in which that real property is | 2334 |
situated prior to the date of recording of a curative memorandum | 2335 |
of trust or the effective date of this section, whichever event | 2336 |
occurs later. | 2337 |
Sec. 5747.02. (A) For the purpose of providing revenue for | 2338 |
the support of schools and local government functions, to provide | 2339 |
relief to property taxpayers, to provide revenue for the general | 2340 |
revenue fund, and to meet the expenses of administering the tax | 2341 |
levied by this chapter, there is hereby levied on every | 2342 |
individual, trust, and estate residing in or earning or receiving | 2343 |
income in this state, on every individual, trust, and estate | 2344 |
earning or receiving lottery winnings, prizes, or awards pursuant | 2345 |
to Chapter 3770. of the Revised Code, on every individual, trust, | 2346 |
and estate earning or receiving winnings on casino gaming, and on | 2347 |
every individual, trust, and estate otherwise having nexus with or | 2348 |
in this state under the Constitution of the United States, an | 2349 |
annual tax measured in the case of individuals by Ohio adjusted | 2350 |
gross income less an exemption for the taxpayer, the taxpayer's | 2351 |
spouse, and each dependent as provided in section 5747.025 of the | 2352 |
Revised Code; measured in the case of trusts by modified Ohio | 2353 |
taxable income under division (D) of this section; and measured in | 2354 |
the case of estates by Ohio taxable income. The tax imposed by | 2355 |
this section on the balance thus obtained is hereby levied as | 2356 |
follows: | 2357 |
(1) For taxable years beginning in 2004: | 2358 |
OHIO ADJUSTED GROSS INCOME LESS EXEMPTIONS (INDIVIDUALS) | 2359 | ||
OR | 2360 | ||
MODIFIED OHIO | 2361 | ||
TAXABLE INCOME (TRUSTS) | 2362 | ||
OR | 2363 | ||
OHIO TAXABLE INCOME (ESTATES) | TAX | 2364 |
$5,000 or less | .743% | 2365 | ||
More than $5,000 but not more than $10,000 | $37.15 plus 1.486% of the amount in excess of $5,000 | 2366 | ||
More than $10,000 but not more than $15,000 | $111.45 plus 2.972% of the amount in excess of $10,000 | 2367 | ||
More than $15,000 but not more than $20,000 | $260.05 plus 3.715% of the amount in excess of $15,000 | 2368 | ||
More than $20,000 but not more than $40,000 | $445.80 plus 4.457% of the amount in excess of $20,000 | 2369 | ||
More than $40,000 but not more than $80,000 | $1,337.20 plus 5.201% of the amount in excess of $40,000 | 2370 | ||
More than $80,000 but not more than $100,000 | $3,417.60 plus 5.943% of the amount in excess of $80,000 | 2371 | ||
More than $100,000 but not more than $200,000 | $4,606.20 plus 6.9% of the amount in excess of $100,000 | 2372 | ||
More than $200,000 | $11,506.20 plus 7.5% of the amount in excess of $200,000 | 2373 |
(2) For taxable years beginning in 2005: | 2374 |
OHIO ADJUSTED GROSS INCOME LESS EXEMPTIONS (INDIVIDUALS) | 2375 | ||
OR | 2376 | ||
MODIFIED OHIO | 2377 | ||
TAXABLE INCOME (TRUSTS) | 2378 | ||
OR | 2379 | ||
OHIO TAXABLE INCOME (ESTATES) | TAX | 2380 |
$5,000 or less | .712% | 2381 | ||
More than $5,000 but not more than $10,000 | $35.60 plus 1.424% of the amount in excess of $5,000 | 2382 | ||
More than $10,000 but not more than $15,000 | $106.80 plus 2.847% of the amount in excess of $10,000 | 2383 | ||
More than $15,000 but not more than $20,000 | $249.15 plus 3.559% of the amount in excess of $15,000 | 2384 | ||
More than $20,000 but not more than $40,000 | $427.10 plus 4.27% of the amount in excess of $20,000 | 2385 | ||
More than $40,000 but not more than $80,000 | $1,281.10 plus 4.983% of the amount in excess of $40,000 | 2386 | ||
More than $80,000 but not more than $100,000 | $3,274.30 plus 5.693% of the amount in excess of $80,000 | 2387 | ||
More than $100,000 but not more than $200,000 | $4,412.90 plus 6.61% of the amount in excess of $100,000 | 2388 | ||
More than $200,000 | $11,022.90 plus 7.185% of the amount in excess of $200,000 | 2389 |
(3) For taxable years beginning in 2006: | 2390 |
OHIO ADJUSTED GROSS INCOME LESS EXEMPTIONS (INDIVIDUALS) | 2391 | ||
OR | 2392 | ||
MODIFIED OHIO | 2393 | ||
TAXABLE INCOME (TRUSTS) | 2394 | ||
OR | 2395 | ||
OHIO TAXABLE INCOME (ESTATES) | TAX | 2396 |
$5,000 or less | .681% | 2397 | ||
More than $5,000 but not more than $10,000 | $34.05 plus 1.361% of the amount in excess of $5,000 | 2398 | ||
More than $10,000 but not more than $15,000 | $102.10 plus 2.722% of the amount in excess of $10,000 | 2399 | ||
More than $15,000 but not more than $20,000 | $238.20 plus 3.403% of the amount in excess of $15,000 | 2400 | ||
More than $20,000 but not more than $40,000 | $408.35 plus 4.083% of the amount in excess of $20,000 | 2401 | ||
More than $40,000 but not more than $80,000 | $1,224.95 plus 4.764% of the amount in excess of $40,000 | 2402 | ||
More than $80,000 but not more than $100,000 | $3,130.55 plus 5.444% of the amount in excess of $80,000 | 2403 | ||
More than $100,000 but not more than $200,000 | $4,219.35 plus 6.32% of the amount in excess of $100,000 | 2404 | ||
More than $200,000 | $10,539.35 plus 6.87% of the amount in excess of $200,000 | 2405 |
(4) For taxable years beginning in 2007: | 2406 |
OHIO ADJUSTED GROSS INCOME LESS EXEMPTIONS (INDIVIDUALS) | 2407 | ||
OR | 2408 | ||
MODIFIED OHIO | 2409 | ||
TAXABLE INCOME (TRUSTS) | 2410 | ||
OR | 2411 | ||
OHIO TAXABLE INCOME (ESTATES) | TAX | 2412 |
$5,000 or less | .649% | 2413 | ||
More than $5,000 but not more than $10,000 | $32.45 plus 1.299% of the amount in excess of $5,000 | 2414 | ||
More than $10,000 but not more than $15,000 | $97.40 plus 2.598% of the amount in excess of $10,000 | 2415 | ||
More than $15,000 but not more than $20,000 | $227.30 plus 3.247% of the amount in excess of $15,000 | 2416 | ||
More than $20,000 but not more than $40,000 | $389.65 plus 3.895% of the amount in excess of $20,000 | 2417 | ||
More than $40,000 but not more than $80,000 | $1,168.65 plus 4.546% of the amount in excess of $40,000 | 2418 | ||
More than $80,000 but not more than $100,000 | $2,987.05 plus 5.194% of the amount in excess of $80,000 | 2419 | ||
More than $100,000 but not more than $200,000 | $4,025.85 plus 6.031% of the amount in excess of $100,000 | 2420 | ||
More than $200,000 | $10,056.85 plus 6.555% of the amount in excess of $200,000 | 2421 |
(5) For taxable years beginning in 2008, 2009, or 2010: | 2422 |
OHIO ADJUSTED GROSS INCOME LESS EXEMPTIONS (INDIVIDUALS) | 2423 | ||
OR | 2424 | ||
MODIFIED OHIO | 2425 | ||
TAXABLE INCOME (TRUSTS) | 2426 | ||
OR | 2427 | ||
OHIO TAXABLE INCOME (ESTATES) | TAX | 2428 |
$5,000 or less | .618% | 2429 | ||
More than $5,000 but not more than $10,000 | $30.90 plus 1.236% of the amount in excess of $5,000 | 2430 | ||
More than $10,000 but not more than $15,000 | $92.70 plus 2.473% of the amount in excess of $10,000 | 2431 | ||
More than $15,000 but not more than $20,000 | $216.35 plus 3.091% of the amount in excess of $15,000 | 2432 | ||
More than $20,000 but not more than $40,000 | $370.90 plus 3.708% of the amount in excess of $20,000 | 2433 | ||
More than $40,000 but not more than $80,000 | $1,112.50 plus 4.327% of the amount in excess of $40,000 | 2434 | ||
More than $80,000 but not more than $100,000 | $2,843.30 plus 4.945% of the amount in excess of $80,000 | 2435 | ||
More than $100,000 but not more than $200,000 | $3,832.30 plus 5.741% of the amount in excess of $100,000 | 2436 | ||
More than $200,000 | $9,573.30 plus 6.24% of the amount in excess of $200,000 | 2437 |
(6) For taxable years beginning in 2011 or thereafter: | 2438 |
OHIO ADJUSTED GROSS INCOME LESS EXEMPTIONS (INDIVIDUALS) | 2439 | ||
OR | 2440 | ||
MODIFIED OHIO | 2441 | ||
TAXABLE INCOME (TRUSTS) | 2442 | ||
OR | 2443 | ||
OHIO TAXABLE INCOME (ESTATES) | TAX | 2444 |
$5,000 or less | .587% | 2445 | ||
More than $5,000 but not more than $10,000 | $29.35 plus 1.174% of the amount in excess of $5,000 | 2446 | ||
More than $10,000 but not more than $15,000 | $88.05 plus 2.348% of the amount in excess of $10,000 | 2447 | ||
More than $15,000 but not more than $20,000 | $205.45 plus 2.935% of the amount in excess of $15,000 | 2448 | ||
More than $20,000 but not more than $40,000 | $352.20 plus 3.521% of the amount in excess of $20,000 | 2449 | ||
More than $40,000 but not more than $80,000 | $1,056.40 plus 4.109% of the amount in excess of $40,000 | 2450 | ||
More than $80,000 but not more than $100,000 | $2,700.00 plus 4.695% of the amount in excess of $80,000 | 2451 | ||
More than $100,000 but not more than $200,000 | $3,639.00 plus 5.451% of the amount in excess of $100,000 | 2452 | ||
More than $200,000 | $9,090.00 plus 5.925% of the amount in excess of $200,000 | 2453 |
In July of each year, beginning in 2010, the tax commissioner | 2454 |
shall adjust the income amounts prescribed in this division by | 2455 |
multiplying the percentage increase in the gross domestic product | 2456 |
deflator computed that year under section 5747.025 of the Revised | 2457 |
Code by each of the income amounts resulting from the adjustment | 2458 |
under this division in the preceding year, adding the resulting | 2459 |
product to the corresponding income amount resulting from the | 2460 |
adjustment in the preceding year, and rounding the resulting sum | 2461 |
to the nearest multiple of fifty dollars. The tax commissioner | 2462 |
also shall recompute each of the tax dollar amounts to the extent | 2463 |
necessary to reflect the adjustment of the income amounts. The | 2464 |
rates of taxation shall not be adjusted. | 2465 |
The adjusted amounts apply to taxable years beginning in the | 2466 |
calendar year in which the adjustments are made. The tax | 2467 |
commissioner shall not make such adjustments in any year in which | 2468 |
the amount resulting from the adjustment would be less than the | 2469 |
amount resulting from the adjustment in the preceding year. | 2470 |
(B) If the director of budget and management makes a | 2471 |
certification to the tax commissioner under division (B) of | 2472 |
section 131.44 of the Revised Code, the amount of tax as | 2473 |
determined under division (A) of this section shall be reduced by | 2474 |
the percentage prescribed in that certification for taxable years | 2475 |
beginning in the calendar year in which that certification is | 2476 |
made. | 2477 |
(C) The levy of this tax on income does not prevent a | 2478 |
municipal corporation, a joint economic development zone created | 2479 |
under section 715.691, or a joint economic development district | 2480 |
created under section 715.70 or 715.71 or sections 715.72 to | 2481 |
715.81 of the Revised Code from levying a tax on income. | 2482 |
(D) This division applies only to taxable years of a trust | 2483 |
beginning in 2002 or thereafter. | 2484 |
(1) The tax imposed by this section on a trust shall be | 2485 |
computed by multiplying the Ohio modified taxable income of the | 2486 |
trust by the rates prescribed by division (A) of this section. | 2487 |
(2) A | 2488 |
the tax computed under division (D) of this section equal to the | 2489 |
lesser of (1) the tax paid to another state or the District of | 2490 |
Columbia on the | 2491 |
income, other than the portion of the | 2492 |
nonbusiness income that is qualifying investment income as defined | 2493 |
in section 5747.012 of the Revised Code, or (2) the effective tax | 2494 |
rate, based on modified Ohio taxable income, multiplied by the | 2495 |
2496 | |
than the portion of the
| 2497 |
income that is qualifying investment income. The credit applies | 2498 |
before any other applicable credits. | 2499 |
(3) The credits enumerated in divisions (A)(1) to (13) of | 2500 |
section 5747.98 of the Revised Code do not apply to a trust | 2501 |
subject to division (D) of this section. Any credits enumerated in | 2502 |
other divisions of section 5747.98 of the Revised Code apply to a | 2503 |
trust subject to division (D) of this section. To the extent that | 2504 |
the trust distributes income for the taxable year for which a | 2505 |
credit is available to the trust, the credit shall be shared by | 2506 |
the trust and its beneficiaries. The tax commissioner and the | 2507 |
trust shall be guided by applicable regulations of the United | 2508 |
States treasury regarding the sharing of credits. | 2509 |
(E) For the purposes of this section, "trust" means any trust | 2510 |
described in Subchapter J of Chapter 1 of the Internal Revenue | 2511 |
Code, excluding trusts that are not irrevocable as defined in | 2512 |
division (I)(3)(b) of section 5747.01 of the Revised Code and that | 2513 |
have no modified Ohio taxable income for the taxable year, | 2514 |
charitable remainder trusts, qualified funeral trusts and preneed | 2515 |
funeral contract trusts established pursuant to sections 4717.31 | 2516 |
to 4717.38 of the Revised Code that are not qualified funeral | 2517 |
trusts, endowment and perpetual care trusts, qualified settlement | 2518 |
trusts and funds, designated settlement trusts and funds, and | 2519 |
trusts exempted from taxation under section 501(a) of the Internal | 2520 |
Revenue Code. | 2521 |
Sec. 5801.10. (A) As used in this section, "creditor" means | 2522 |
any of the following: | 2523 |
(1) A person holding a debt or security for a debt entered | 2524 |
into by a trustee on behalf of the trust; | 2525 |
(2) A person holding a debt secured by one or more assets of | 2526 |
the trust; | 2527 |
(3) A person having a claim against the trustee or the assets | 2528 |
of the trust under section 5805.06 of the Revised Code; | 2529 |
(4) A person who has attached through legal process a | 2530 |
beneficiary's interest in the trust. | 2531 |
(B) | 2532 |
parties to an agreement under this section shall be
| 2533 |
or more of the following, or their representatives under the | 2534 |
representation provisions of Chapter 5803. of the Revised Code, | 2535 |
except that only the settlor and any trustee are required to be | 2536 |
parties to an amendment of any revocable trust: | 2537 |
| 2538 |
transfer tax results would arise from the settlor's participation; | 2539 |
| 2540 |
| 2541 |
| 2542 |
agreement. | 2543 |
(2) In addition to the parties to an agreement under division | 2544 |
(B)(1) of this section, the parties shall include the attorney | 2545 |
general if an agreement described in division (C)(7) of this | 2546 |
section is being made and either of the following applies: | 2547 |
(a) An organization with one or more purposes that are | 2548 |
described in division (A) of section 5804.05 of the Revised Code | 2549 |
is a beneficiary. | 2550 |
(b) The trust is a charitable trust. | 2551 |
(C) The persons specified in division (B) of this section may | 2552 |
by written instrument enter into an agreement with respect to any | 2553 |
matter concerning the construction of, administration of, or | 2554 |
distributions under the terms of the trust, the investment of | 2555 |
income or principal held by the trustee, or other matters. The | 2556 |
agreement may not effect a termination of the trust before the | 2557 |
date specified for the trust's termination in the terms of the | 2558 |
trust, change the interests of the beneficiaries in the trust | 2559 |
except as necessary to effect a modification described in division | 2560 |
(C)(5) | 2561 |
conditions that could not be properly approved by the court under | 2562 |
Chapters 5801. to 5811. of the Revised Code or other applicable | 2563 |
law. The invalidity of any provision of the agreement does not | 2564 |
affect the validity of other provisions of the agreement. Matters | 2565 |
that may be resolved by a private settlement agreement include, | 2566 |
but are not limited to, all of the following: | 2567 |
(1) Determining classes of creditors, beneficiaries, heirs, | 2568 |
next of kin, or other persons; | 2569 |
(2) Resolving disputes arising out of the administration or | 2570 |
distribution under the terms of the trust, including disputes over | 2571 |
the construction of the language of the trust instrument or | 2572 |
construction of the language of other writings that affect the | 2573 |
terms of the trust; | 2574 |
(3) Granting to the trustee necessary or desirable powers not | 2575 |
granted in the terms of the trust or otherwise provided by law, to | 2576 |
the extent that those powers either are not inconsistent with the | 2577 |
express provisions or purposes of the terms of the trust or, if | 2578 |
inconsistent with the express provisions or purposes of the terms | 2579 |
of the trust, are necessary for the due administration of the | 2580 |
terms of the trust; | 2581 |
(4) Modifying the terms of the trust, if the modification is | 2582 |
not inconsistent with any | 2583 |
of the trust; | 2584 |
(5) Modifying the terms of the trust in the manner required | 2585 |
to qualify the gift under the terms of the trust for the | 2586 |
charitable estate or gift tax deduction permitted by federal law, | 2587 |
including the addition of mandatory governing instrument | 2588 |
requirements for a charitable remainder trust as required by the | 2589 |
Internal Revenue Code and regulations promulgated under it in any | 2590 |
case in which | 2591 |
submitted written agreements to the proposed changes or written | 2592 |
disclaimer of interest; | 2593 |
(6) Modifying the terms of the trust in the manner required | 2594 |
to qualify any gift under the terms of the trust for the estate | 2595 |
tax marital deduction available to noncitizen spouses, including | 2596 |
the addition of mandatory governing instrument requirements for a | 2597 |
qualified domestic trust under section 2056A of the Internal | 2598 |
Revenue Code and regulations promulgated under it in any case in | 2599 |
which | 2600 |
written agreements to the proposed changes or written disclaimer | 2601 |
of interest; | 2602 |
(7) Construing or modifying the terms of a trust that refer | 2603 |
to the federal estate tax, federal generation-skipping transfer | 2604 |
tax, or Ohio estate tax, or that contain a division of property | 2605 |
based on the imposition or amount of one or more of those taxes, | 2606 |
to give effect to the intent of the settlor; | 2607 |
(8) Resolving any other matter that arises under Chapters | 2608 |
5801. to 5811. of the Revised Code. | 2609 |
(D) No agreement shall be entered into under this section | 2610 |
affecting the rights of a creditor without the creditor's consent | 2611 |
or affecting the collection rights of federal, state, or local | 2612 |
taxing authorities. | 2613 |
(E) Any agreement entered into under this section that | 2614 |
complies with the requirements of division (C) of this section | 2615 |
shall be final and binding on the | 2616 |
2617 | |
persons represented by the parties to the agreement whether by | 2618 |
reason of Chapter 5803. of the Revised Code or otherwise, and | 2619 |
their heirs, successors, and assigns, but shall have no effect on | 2620 |
any trustee, settlor, beneficiary, or creditor who is not a party | 2621 |
to the agreement or is not represented by a party to the | 2622 |
agreement. | 2623 |
(F) Notwithstanding anything in this section, in division (D) | 2624 |
of section 5803.03 of the Revised Code, or in any other rule of | 2625 |
law to the contrary, a trustee serving under the terms of the | 2626 |
trust shall only represent its own individual or corporate | 2627 |
interests in negotiating or entering into an agreement subject to | 2628 |
this section. No trustee serving under the terms of the trust | 2629 |
shall be considered to represent any settlor, beneficiary, or the | 2630 |
interests of any settlor or beneficiary in negotiating or entering | 2631 |
into an agreement subject to this section. | 2632 |
(G) Any party to a private settlement agreement entered into | 2633 |
under this section may request the court to approve the agreement, | 2634 |
to determine whether the representation as provided in Chapter | 2635 |
5803. of the Revised Code was adequate, and to determine whether | 2636 |
the agreement contains terms and conditions the court could have | 2637 |
properly approved. | 2638 |
(H) If an agreement entered into under this section contains | 2639 |
a provision requiring binding arbitration of any disputes arising | 2640 |
under the agreement, the provision is enforceable. | 2641 |
(I) Nothing in this section affects any of the following: | 2642 |
(1) The right of a beneficiary to disclaim under section | 2643 |
5815.36 of the Revised Code; | 2644 |
(2) The termination or modification of a trust under section | 2645 |
5804.10, 5804.11, 5804.12, 5804.13, 5804.14, 5804.15, or 5804.16 | 2646 |
of the Revised Code; | 2647 |
(3) The ability of a trustee to divide or consolidate a trust | 2648 |
under section 5804.17 of the Revised Code; | 2649 |
(4) The power of the trustee to make distributions pursuant | 2650 |
to section 5808.18 of the Revised Code. | 2651 |
(J) Nothing in this section restricts or limits the | 2652 |
jurisdiction of any court to dispose of matters not covered by | 2653 |
agreements under this section or to supervise the acts of trustees | 2654 |
appointed by that court. | 2655 |
(K) This section shall be liberally construed to favor the | 2656 |
validity and enforceability of agreements entered into under it. | 2657 |
(L) A trustee serving under the trust instrument is not | 2658 |
liable to any third person arising from any loss due to that | 2659 |
trustee's actions or inactions taken or omitted in good faith | 2660 |
reliance on the terms of an agreement entered into under this | 2661 |
section. | 2662 |
(M) | 2663 |
section, this section does not apply to any of the following: | 2664 |
(1) A charitable trust that has one or more charitable | 2665 |
organizations as qualified beneficiaries; | 2666 |
(2) A charitable trust the terms of which authorize or direct | 2667 |
the trustee to distribute trust income or principal to one or more | 2668 |
charitable organizations to be selected by the trustee, or for one | 2669 |
or more charitable purposes described in division (A) of section | 2670 |
5804.05 of the Revised Code, if any of the following apply: | 2671 |
(a) The distributions may be made on the date that an | 2672 |
agreement under this section would be entered into. | 2673 |
(b) The distributions could be made on the date that an | 2674 |
agreement under this section would be entered into if the | 2675 |
interests of the current beneficiaries of the trust terminated on | 2676 |
that date, but the termination of those interests would not cause | 2677 |
the trust to terminate. | 2678 |
(c) The distributions could be made on the date that an | 2679 |
agreement under this section would be entered into if the trust | 2680 |
terminated on that date. | 2681 |
(N) This section does not prohibit some or all of the persons | 2682 |
who could enter into an agreement under this section from entering | 2683 |
into agreements that are not described in this section and are | 2684 |
governed by other law, including the common law. Nothing in this | 2685 |
section limits or negates any consents, releases, or | 2686 |
ratifications, whether under section 5810.09 of the Revised Code | 2687 |
or otherwise, relating to any agreement described in this section | 2688 |
or governed by other law. | 2689 |
Sec. 5804.11. (A) If upon petition the court finds that the | 2690 |
settlor and all beneficiaries consent to the modification or | 2691 |
termination of a noncharitable irrevocable trust, that all | 2692 |
consents, including any given by representatives under Chapter | 2693 |
5803. of the Revised Code, are valid, and that all parties giving | 2694 |
consent are competent to do so, the court shall enter an order | 2695 |
approving the modification or termination even if the modification | 2696 |
or termination is inconsistent with a material purpose of the | 2697 |
trust. An agent under a power of attorney may exercise a settlor's | 2698 |
power to consent to a trust's modification or termination only to | 2699 |
the extent expressly authorized by both the power of attorney and | 2700 |
the terms of the trust. The settlor's guardian of the estate may | 2701 |
exercise a settlor's power to consent to a trust's modification or | 2702 |
termination with the approval of the court supervising the | 2703 |
guardianship if an agent is not so authorized. The guardian of the | 2704 |
settlor's person may exercise a settlor's power to consent to a | 2705 |
trust's modification or termination with the approval of the court | 2706 |
supervising the guardianship if an agent is not so authorized and | 2707 |
a guardian of the estate has not been appointed. This division | 2708 |
does not apply to a noncharitable irrevocable trust described in | 2709 |
42 U.S.C. 1396p(d)(4). | 2710 |
(B) A noncharitable irrevocable trust may be terminated upon | 2711 |
consent of all of the beneficiaries if the court concludes that | 2712 |
continuance of the trust is not necessary to achieve any material | 2713 |
purpose of the trust. A noncharitable irrevocable trust may be | 2714 |
modified, but not to remove or replace the trustee, upon consent | 2715 |
of all of the beneficiaries if the court concludes that | 2716 |
modification is not inconsistent with a material purpose of the | 2717 |
trust. A spendthrift provision in the terms of the trust may, but | 2718 |
is not presumed to, constitute a material purpose of the trust. In | 2719 |
determining what constitutes a material purpose of a trust, a | 2720 |
court may but is not required to consider extrinsic evidence | 2721 |
indicating a settlor's intent at the time the instrument was | 2722 |
executed. | 2723 |
(C) Upon termination of a trust under division (A) or (B) of | 2724 |
this section, the trustee shall distribute the trust property as | 2725 |
agreed by the beneficiaries. | 2726 |
(D) If not all of the beneficiaries consent to a proposed | 2727 |
modification or termination of the trust under division (A) or (B) | 2728 |
of this section, the court may approve the modification or | 2729 |
termination if the court is satisfied of both of the following: | 2730 |
(1) That if all of the beneficiaries had consented, the trust | 2731 |
could have been modified or terminated under this section; | 2732 |
(2) That the interests of a beneficiary who does not consent | 2733 |
will be adequately protected. | 2734 |
Sec. 5804.12. (A) The court may modify the administrative or | 2735 |
dispositive terms of a trust or terminate the trust if because of | 2736 |
circumstances not anticipated by the settlor modification or | 2737 |
termination will further the purposes of the trust. To the extent | 2738 |
practicable, the court shall make the modification in accordance | 2739 |
with the settlor's probable intention. | 2740 |
(B) The court may modify the administrative terms of a trust | 2741 |
if continuation of the trust on its existing terms would be | 2742 |
impracticable or impair the trust's administration. | 2743 |
(C) Upon termination of a trust under this section, the | 2744 |
trustee shall distribute the trust property in a manner consistent | 2745 |
with the purposes of the trust. | 2746 |
(D) The court may modify or interpret the terms of a trust, | 2747 |
including, but not limited to, a charitable trust or a trust | 2748 |
having as a beneficiary an organization with one or more purposes | 2749 |
that are described in division (A) of section 5804.05 of the | 2750 |
Revised Code, that refer to the federal estate tax, federal | 2751 |
generation-skipping transfer tax, or Ohio estate tax, or that | 2752 |
contain a division of property based on the imposition or amount | 2753 |
of one or more of those taxes, to give effect to the intent of the | 2754 |
settlor. | 2755 |
Sec. 5808.02. (A) A trustee shall administer the trust | 2756 |
solely in the interests of the beneficiaries. | 2757 |
(B) Subject to the rights of persons dealing with or | 2758 |
assisting the trustee as provided in section 5810.12 of the | 2759 |
Revised Code, a sale, encumbrance, or other transaction involving | 2760 |
the investment or management of trust property entered into by the | 2761 |
trustee for the trustee's own personal account or that is | 2762 |
otherwise affected by a conflict between the trustee's fiduciary | 2763 |
and personal interests is voidable by a beneficiary affected by | 2764 |
the transaction unless one of the following applies: | 2765 |
(1) The transaction was authorized by the terms of the trust | 2766 |
or by other provisions of the Revised Code. | 2767 |
(2) The transaction was approved by the court. | 2768 |
(3) The beneficiary did not commence a judicial proceeding | 2769 |
within the time allowed by section 5810.05 of the Revised Code. | 2770 |
(4) The beneficiary or the beneficiary's representative | 2771 |
consented to the trustee's conduct, ratified the transaction, or | 2772 |
released the trustee in compliance with section 5810.09 of the | 2773 |
Revised Code. | 2774 |
(5) The transaction involves a contract entered into or claim | 2775 |
acquired by the trustee before the person became or contemplated | 2776 |
becoming trustee. | 2777 |
(C) A sale, encumbrance, or other transaction involving the | 2778 |
investment or management of trust property is presumed to be | 2779 |
affected by a conflict between personal and fiduciary interests if | 2780 |
it is entered into by the trustee with one of the following: | 2781 |
(1) The trustee's spouse; | 2782 |
(2) The trustee's descendant, sibling, or parent or the | 2783 |
spouse of a trustee's descendant, sibling, or parent; | 2784 |
(3) An agent or attorney of the trustee; | 2785 |
(4) A corporation or other person or enterprise in which the | 2786 |
trustee, or a person that owns a significant interest in the | 2787 |
trustee, has an interest that might affect the trustee's best | 2788 |
judgment. | 2789 |
(D) A transaction not concerning trust property in which the | 2790 |
trustee engages in the trustee's individual capacity involves a | 2791 |
conflict between personal and fiduciary interests if the | 2792 |
transaction concerns an opportunity properly belonging to the | 2793 |
trust. | 2794 |
(E) An investment by a trustee that is permitted by other | 2795 |
provisions of the Revised Code is not presumed to be affected by a | 2796 |
conflict between personal and fiduciary interests if the | 2797 |
investment otherwise complies with the prudent investor rule of | 2798 |
Chapter 5809. of the Revised Code. | 2799 |
(F) In voting shares of stock or in exercising powers of | 2800 |
control over similar interests in other forms of enterprise, the | 2801 |
trustee shall act in the best interests of the beneficiaries. If | 2802 |
the trust is the sole owner of a corporation or other form of | 2803 |
enterprise, the trustee shall elect or appoint directors or other | 2804 |
managers who will manage the corporation or enterprise in the best | 2805 |
interests of the beneficiaries. | 2806 |
(G) This section does not preclude either of the following: | 2807 |
(1) Any transaction authorized by another section of the | 2808 |
Revised Code; | 2809 |
(2) Unless the beneficiaries establish that it is unfair, any | 2810 |
of the following transactions: | 2811 |
(a) An agreement between a trustee and a beneficiary relating | 2812 |
to the appointment or compensation of the trustee; | 2813 |
(b) Payment of reasonable compensation to the trustee; | 2814 |
(c) A transaction between a trust and another trust, | 2815 |
decedent's estate, or guardianship of which the trustee is a | 2816 |
fiduciary or in which a beneficiary has an interest; | 2817 |
(d) A deposit of trust money in a regulated | 2818 |
financial-services institution that is an affiliate of the | 2819 |
trustee; | 2820 |
(e) An advance by the trustee of money for the protection of | 2821 |
the trust. | 2822 |
(H) The court may appoint a special fiduciary to make a | 2823 |
decision with respect to any proposed transaction that might | 2824 |
violate this section if entered into by the trustee. | 2825 |
Sec. 5808.14. (A) The judicial standard of review for | 2826 |
discretionary trusts is that the trustee shall exercise a | 2827 |
discretionary power reasonably, in good faith, and in accordance | 2828 |
with the terms and purposes of the trust and the interests of the | 2829 |
beneficiaries, except that with respect to distribution decisions | 2830 |
a reasonableness standard shall not be applied to the exercise of | 2831 |
discretion by the trustee of a wholly discretionary trust. The | 2832 |
greater the grant of discretion by the settlor to the trustee, the | 2833 |
broader the range of permissible conduct by the trustee in | 2834 |
exercising it. | 2835 |
(B) Subject to division (D) of this section, and unless the | 2836 |
terms of the trust expressly indicate that a rule in this division | 2837 |
does not apply: | 2838 |
(1) A person other than a settlor who is a beneficiary and | 2839 |
trustee of a trust that confers on the trustee a power to make | 2840 |
discretionary distributions to or for the trustee's personal | 2841 |
benefit may exercise the power only in accordance with an | 2842 |
ascertainable standard. | 2843 |
(2) A trustee may not exercise a power to make discretionary | 2844 |
distributions to satisfy a legal obligation of support that the | 2845 |
trustee personally owes another person. | 2846 |
(C) A power whose exercise is limited or prohibited by | 2847 |
division (B) of this section may be exercised by a majority of the | 2848 |
remaining trustees whose exercise of the power is not so limited | 2849 |
or prohibited. If the power of all trustees is so limited or | 2850 |
prohibited, the court may appoint a special fiduciary with | 2851 |
authority to exercise the power. | 2852 |
(D) Division (B) of this section does not apply to any of the | 2853 |
following: | 2854 |
(1) A power held by the settlor's spouse who is the trustee | 2855 |
of a trust for which a marital deduction, as defined in section | 2856 |
2056(b)(5) or 2523(e) of the Internal Revenue Code, was previously | 2857 |
allowed; | 2858 |
(2) Any trust during any period that the trust may be revoked | 2859 |
or amended by its settlor; | 2860 |
(3) A trust if contributions to the trust qualify for the | 2861 |
annual exclusion under section 2503(c) of the Internal Revenue | 2862 |
Code. | 2863 |
(E) For purposes of division (A) of this section, a trustee | 2864 |
who acts reasonably and in good faith in exercising the power to | 2865 |
distribute trust income or principal to the trustee of a second | 2866 |
trust in accordance with division (A) or (B) of section 5808.18 of | 2867 |
the Revised Code is presumed to have acted in accordance with the | 2868 |
terms and purposes of the trust and the interests of the | 2869 |
beneficiaries. | 2870 |
Sec. 5808.17. (A) Upon termination or partial termination of | 2871 |
a trust, the trustee may send to the beneficiaries a proposal for | 2872 |
distribution. The right of any beneficiary to object to the | 2873 |
proposed distribution terminates if the beneficiary does not | 2874 |
notify the trustee of an objection within thirty days after the | 2875 |
proposal was sent but only if the proposal informed the | 2876 |
beneficiary of the right to object and of the time allowed for | 2877 |
objection. | 2878 |
(B) Upon the occurrence of an event terminating or partially | 2879 |
terminating a trust, the trustee shall proceed expeditiously to | 2880 |
distribute the trust property to the persons entitled to it, | 2881 |
subject to the right of the trustee to retain a reasonable reserve | 2882 |
for the payment of debts, expenses, and taxes. | 2883 |
(C) A release by a beneficiary of a trustee from liability | 2884 |
for breach of trust is invalid to the extent that it was induced | 2885 |
by improper conduct of the trustee or that the beneficiary, at the | 2886 |
time of the release, did not know of the beneficiary's rights or | 2887 |
of the material facts relating to the breach. | 2888 |
(D) If a beneficiary who was entitled to receive a | 2889 |
distribution is deceased, the beneficiary's death did not | 2890 |
terminate the beneficiary's right to receive the distribution, and | 2891 |
an administration of the beneficiary's estate is open, the trustee | 2892 |
shall make the distribution to the personal representative of the | 2893 |
beneficiary's estate. If a beneficiary who was entitled to receive | 2894 |
a distribution is deceased, the beneficiary's death did not | 2895 |
terminate the beneficiary's right to receive the distribution, and | 2896 |
an administration of the beneficiary's estate is not open, the | 2897 |
trustee, without liability, may make the distribution directly to | 2898 |
the beneficiary's heirs or devisees without requiring the opening | 2899 |
or re-opening of estate administration proceedings if the trustee | 2900 |
does not know of an adverse claim to the distribution and one of | 2901 |
the following applies: | 2902 |
(1) The beneficiary's estate was administered as an intestate | 2903 |
estate in the jurisdiction in which the beneficiary was domiciled | 2904 |
at death, and the trustee does both of the following: | 2905 |
(a) Distributes the personal property included in the | 2906 |
distribution to the person or persons who were determined to be | 2907 |
the heirs of the beneficiary in that administration, in the same | 2908 |
manner as the personal property would have been distributed if it | 2909 |
had been part of the beneficiary's intestate estate; | 2910 |
(b) Distributes the real property included in the | 2911 |
distribution to the person or persons the trustee reasonably | 2912 |
determines were the beneficiary's heirs under the statutes of | 2913 |
descent and distribution, in effect at the time of the | 2914 |
beneficiary's death, of the jurisdiction or jurisdictions in which | 2915 |
the real property is located. | 2916 |
(2) The beneficiary's estate was administered as a testate | 2917 |
estate in the jurisdiction in which the deceased beneficiary was | 2918 |
domiciled at death, and the trustee does both of the following: | 2919 |
(a) Distributes the personal property included in the | 2920 |
distribution to the residuary devisee or devisees under the | 2921 |
beneficiary's will, in the same manner as the personal property | 2922 |
would have been distributed in that administration if it had been | 2923 |
part of the beneficiary's testate estate; | 2924 |
(b) Distributes the real property included in the | 2925 |
distribution to the person or persons the trustee reasonably | 2926 |
determines would have received the real property under the law of | 2927 |
the jurisdiction or jurisdictions in which the real property is | 2928 |
located. | 2929 |
(3) Division (D)(1) or (2) of this section does not apply, | 2930 |
the beneficiary's death occurred at least six months before the | 2931 |
trustee makes the distribution, and all of the following apply: | 2932 |
(a) The trustee determines that the beneficiary had created a | 2933 |
trust during the beneficiary's life that remained in existence at | 2934 |
the beneficiary's death. | 2935 |
(b) The beneficiary had executed a will that the trustee | 2936 |
reasonably determines would have been admitted to probate if it | 2937 |
had been offered for probate. | 2938 |
(c) The beneficiary's will described in division (D)(3)(b) of | 2939 |
this section devised the residue of the beneficiary's estate to | 2940 |
the trustee of the trust described in division (D)(3)(a) of this | 2941 |
section to be held under the terms of that trust. | 2942 |
(d) The trustee makes the distribution to the trustee of the | 2943 |
trust described in division (D)(3)(a) of this section. | 2944 |
(4) Division (D)(1), (2), or (3) of this section does not | 2945 |
apply, the beneficiary's death occurred at least six months before | 2946 |
the trustee makes the distribution, and all of the following | 2947 |
apply: | 2948 |
(a) The trustee, exercising reasonable diligence, determines | 2949 |
that an administration of the beneficiary's estate has not been | 2950 |
commenced in the jurisdiction in which the trustee reasonably | 2951 |
determines the beneficiary was domiciled at death. | 2952 |
(b) The trustee does not know of an administration of the | 2953 |
beneficiary's estate having been commenced in any other | 2954 |
jurisdiction. | 2955 |
(c) The trustee does not know of a purported last will and | 2956 |
testament of the beneficiary. | 2957 |
(d) The trustee does both of the following: | 2958 |
(i) Distributes the personal property included in the | 2959 |
distribution to the person or persons the trustee reasonably | 2960 |
determines were the beneficiary's heirs under the statutes of | 2961 |
descent and distribution, in effect at the time of the | 2962 |
beneficiary's death, of the jurisdiction in which the trustee | 2963 |
reasonably determines the beneficiary was domiciled at death; | 2964 |
(ii) Distributes the real property included in the | 2965 |
distribution to the person or persons the trustee reasonably | 2966 |
determines were the beneficiary's heirs under the statutes of | 2967 |
descent and distribution, in effect at the time of the | 2968 |
beneficiary's death, of the jurisdiction or jurisdictions in which | 2969 |
the real property is located. | 2970 |
(E) The trustee's protection from liability for making | 2971 |
distributions under division (D) of this section has no effect on | 2972 |
the ability of third parties to pursue claims against the | 2973 |
recipients of those distributions. | 2974 |
Sec. 5808.18. (A) Unless the trust instrument expressly | 2975 |
provides otherwise and subject to the limitations set forth in | 2976 |
this section, all of the following apply: | 2977 |
(1) If a trustee of a trust, referred to in this section as | 2978 |
the "first trust," has absolute power under the terms of the first | 2979 |
trust to make distributions of principal to one or more current | 2980 |
beneficiaries, that trustee may exercise that power by | 2981 |
distributing all or any part of the principal subject to the | 2982 |
power, and all or any part of any income that is not otherwise | 2983 |
currently required to be distributed, to the trustee of another | 2984 |
trust, referred to in this section as the "second trust," that is | 2985 |
for the benefit of one or more current beneficiaries of the first | 2986 |
trust. The second trust may be a trust under the trust instrument | 2987 |
for the first trust or under a different governing instrument, | 2988 |
including a governing instrument created by the trustee of the | 2989 |
first trust. A trustee of a first trust who is authorized to make | 2990 |
distributions to the trustee of a second trust pursuant to | 2991 |
division (A) of this section may do so at any time, whether or not | 2992 |
the trustee of the first trust would otherwise have made a | 2993 |
distribution at that time to, or for the benefit of, any | 2994 |
beneficiary pursuant to the terms of the first trust. | 2995 |
(2) In determining whether a trustee has absolute power to | 2996 |
make distributions of principal to any current beneficiary and the | 2997 |
identity of the current beneficiaries, all of the following apply: | 2998 |
(a) An absolute power to distribute principal includes any | 2999 |
power to make distributions of principal that is not limited by | 3000 |
reasonably definite standards or ascertainable standards, whether | 3001 |
or not the word "absolute" is used in the trust instrument. | 3002 |
(b) A power to make distributions of principal for purposes | 3003 |
that include best interests, welfare, comfort or happiness, or | 3004 |
words of similar import, if not otherwise limited by reasonably | 3005 |
definite standards or ascertainable standards, constitutes an | 3006 |
absolute power not limited by reasonably definite standards or | 3007 |
ascertainable standards, regardless of any requirement to take | 3008 |
into account other resources of the current beneficiary or | 3009 |
beneficiaries to whom those distributions may be made. | 3010 |
(c) If the current beneficiaries of the first trust are | 3011 |
defined, in whole or in part, as a class of persons, that class | 3012 |
includes any person who falls within that class of persons after | 3013 |
the distribution to the second trust. | 3014 |
(d) A power to make distributions for the benefit of a | 3015 |
beneficiary is considered a power to make distributions to that | 3016 |
beneficiary. | 3017 |
(3) If property is distributed pursuant to the authority | 3018 |
described in division (A) of this section, the governing | 3019 |
instrument for the second trust may do either or both of the | 3020 |
following: | 3021 |
(a) Grant a power of appointment to one or more of the | 3022 |
beneficiaries for whose benefit the property was so distributed, | 3023 |
including a power to appoint trust property to the power holder, | 3024 |
the power holder's creditors, the power holder's estate, the | 3025 |
creditors of the power holder's estate, or any other person, | 3026 |
whether or not that person is a beneficiary of the first trust or | 3027 |
the second trust; | 3028 |
(b) Provide that, at a time or upon an event specified in | 3029 |
that governing instrument, the remaining trust property shall | 3030 |
thereafter be held for the benefit of the beneficiaries of the | 3031 |
first trust upon terms and conditions that are substantially | 3032 |
identical to the terms and conditions of the trust instrument for | 3033 |
the first trust, except that any current beneficiary or | 3034 |
beneficiaries for whose benefit the property could have been, but | 3035 |
was not, so distributed may be excluded from having any beneficial | 3036 |
interest in the second trust. | 3037 |
(4) For purposes of division (A)(3) of this section, "terms | 3038 |
and conditions" refer only to those terms and conditions that | 3039 |
govern the interests of the beneficiaries. | 3040 |
(5) For purposes of division (A) of this section, charitable | 3041 |
organizations that are not expressly designated in the terms of | 3042 |
the first trust to receive distributions but to which the trustee | 3043 |
of the first trust, in the discretion of the trustee, or in the | 3044 |
discretion of any other person directing the trustee and acting in | 3045 |
a fiduciary capacity, may at any time make a distribution, are | 3046 |
considered beneficiaries of the first trust. | 3047 |
(B) Unless the trust instrument expressly provides otherwise | 3048 |
and subject to the limitations set forth in this section, a | 3049 |
trustee of a first trust who has power, other than absolute power | 3050 |
as described in division (A) of this section, under the terms of | 3051 |
the first trust to make distributions of principal to one or more | 3052 |
current beneficiaries may exercise that power by distributing all | 3053 |
or any part of the principal subject to the power, and all or any | 3054 |
part of any income that is not otherwise currently required to be | 3055 |
distributed, to the trustee of a second trust. The second trust | 3056 |
may be a trust under the trust instrument for the first trust or | 3057 |
under a different governing instrument, including a governing | 3058 |
instrument created by the trustee of the first trust. The power | 3059 |
described in this division may be exercised whether or not there | 3060 |
is a current need to distribute trust principal under any standard | 3061 |
contained in the first trust. The exercise of a trustee's power | 3062 |
under this division is valid only if the governing instrument for | 3063 |
the second trust does not materially change the interests of the | 3064 |
beneficiaries of the first trust. For purposes of this division, a | 3065 |
power to make distributions for the benefit of a beneficiary shall | 3066 |
be considered a power to make distributions to that beneficiary. | 3067 |
(C) The exercise of the power to make distributions to a | 3068 |
second trust under division (A) or (B) of this section is subject | 3069 |
to the following additional limitations: | 3070 |
(1)(a) The distribution to the trustee of the second trust | 3071 |
shall not result in the reduction, limitation, or modification of | 3072 |
any of the following rights or interests of a beneficiary of the | 3073 |
first trust if the right or interest has come into effect with | 3074 |
respect to the beneficiary: | 3075 |
(i) The current right to a mandatory distribution of income | 3076 |
or principal of the first trust; | 3077 |
(ii) The current mandatory annuity or unitrust interest in | 3078 |
the property of the first trust; | 3079 |
(iii) The right annually to withdraw a percentage of the | 3080 |
value of the first trust or a specified dollar amount. | 3081 |
(b) For purposes of division (C)(1)(a)(i) of this section, a | 3082 |
beneficiary's current right to a distribution of income is not | 3083 |
considered to be mandatory if, under the terms of the first trust, | 3084 |
current distributions of principal may be made to any person other | 3085 |
than that current beneficiary. | 3086 |
(2) If any transfer to the first trust qualified, or if not | 3087 |
for the provisions of division (A) or (B) of this section would | 3088 |
have qualified, for a marital or charitable deduction for purposes | 3089 |
of any federal income, gift, or estate tax under the Internal | 3090 |
Revenue Code, or for purposes of any state income, gift, estate, | 3091 |
or inheritance tax, the governing instrument for the second trust | 3092 |
shall not include or omit any term that, if included in or omitted | 3093 |
from the trust instrument for the first trust, would have | 3094 |
prevented the first trust from qualifying for that deduction, or | 3095 |
would have reduced the amount of the deduction, under the same | 3096 |
provisions of the Internal Revenue Code or under the same | 3097 |
provisions of the applicable state law under which the transfer to | 3098 |
the first trust so qualified. | 3099 |
(3) If any transfer to the first trust has been treated, or | 3100 |
if not for the provisions of division (A) or (B) of this section | 3101 |
would have been treated, as a gift qualifying for the exclusion | 3102 |
from the gift tax described in section 2503(b) of the Internal | 3103 |
Revenue Code, the governing instrument for the second trust shall | 3104 |
not include or omit any term that, if included in or omitted from | 3105 |
the trust instrument for the first trust, would have prevented any | 3106 |
gift to the first trust from so qualifying under the same | 3107 |
provisions of section 2503 of the Internal Revenue Code under | 3108 |
which the transfer to the first trust so qualified. | 3109 |
(4) If the assets of the first trust include any shares of | 3110 |
stock in an S corporation, as defined in section 1361 of the | 3111 |
Internal Revenue Code, and the first trust is, or if not for the | 3112 |
provisions of division (A) or (B) of this section would be, a | 3113 |
permitted shareholder under any provision of section 1361 of the | 3114 |
Internal Revenue Code, the governing instrument for the second | 3115 |
trust shall not include or omit any term that, if included in or | 3116 |
omitted from the trust instrument for the first trust, would have | 3117 |
prevented the first trust from qualifying as a permitted | 3118 |
shareholder of shares of stock in an S corporation under the same | 3119 |
provisions of section 1361 of the Internal Revenue Code under | 3120 |
which the first trust so qualified. | 3121 |
(5) If any transfer to the first trust has been treated, or | 3122 |
if not for the provisions of division (A) or (B) of this section | 3123 |
would have been treated, as a gift qualifying for a zero inclusion | 3124 |
ratio for purposes of the federal generation-skipping transfer tax | 3125 |
under section 2642(c) of the Internal Revenue Code, the governing | 3126 |
instrument for the second trust shall not include or omit any term | 3127 |
that, if included in or omitted from the trust instrument for the | 3128 |
first trust, would have prevented the transfer to the first trust | 3129 |
from so qualifying. | 3130 |
(6) If the assets of the first trust include any interest | 3131 |
subject to the minimum distribution rules of section 401(a)(9) of | 3132 |
the Internal Revenue Code and the treasury regulations issued | 3133 |
under that section, the governing instrument for the second trust | 3134 |
shall not include or omit any term that, if included in or omitted | 3135 |
from the trust instrument for the first trust, would have | 3136 |
shortened the maximum distribution period otherwise allowable | 3137 |
under section 401(a)(9) of the Internal Revenue Code and the | 3138 |
treasury regulations with respect to that interest under the first | 3139 |
trust. | 3140 |
(7)(a) As used in division (C)(7) of this section, "tax | 3141 |
benefit" means any federal or state tax deduction, exemption, | 3142 |
exclusion, or other tax benefit not otherwise listed in division | 3143 |
(C) of this section. | 3144 |
(b) If the trust instrument for the first trust expressly | 3145 |
indicates an intention to qualify for any tax benefit or if the | 3146 |
terms of the trust instrument for the first trust are clearly | 3147 |
designed to enable the first trust to qualify for a tax benefit, | 3148 |
and if the first trust did qualify, or if not for the provisions | 3149 |
of division (A) or (B) of this section would have qualified, for | 3150 |
any tax benefit, the governing instrument for the second trust | 3151 |
shall not include or omit any term that, if included in or omitted | 3152 |
from the trust instrument for the first trust, would have | 3153 |
prevented the first trust from qualifying for that tax benefit. | 3154 |
(8) The distribution to the trustee of the second trust shall | 3155 |
not result in either of the following: | 3156 |
(a) An increase in, or a change in the method of determining, | 3157 |
the compensation of the trustee unless the increase in, or change | 3158 |
in the method of determining, that compensation has been consented | 3159 |
to by all of the persons, other than the trustee of the second | 3160 |
trust, who are current beneficiaries of the second trust or is | 3161 |
approved by the court having jurisdiction over the trust. However, | 3162 |
an increase in compensation of the trustee arising solely because | 3163 |
the duration of the second trust is longer than the duration of | 3164 |
the first trust is not considered an increase in, or a change in | 3165 |
the method of determining, the compensation of the trustee. | 3166 |
(b) A reduction in the standard of care applicable to the | 3167 |
actions of the trustee of the first trust or the second trust or | 3168 |
an exoneration of the trustee of the first trust or the second | 3169 |
trust from liability for actions taken in bad faith or with | 3170 |
willful disregard of the duties of either trustee, including by | 3171 |
increasing the extent to which the trustee is entitled to | 3172 |
indemnification from the trust, as provided in the terms of the | 3173 |
first trust and under any law of this state. | 3174 |
(D) The exercise of the power to distribute trust income or | 3175 |
principal to the trustee of a second trust under division (A) or | 3176 |
(B) of this section shall be by an instrument in writing, signed | 3177 |
by the trustee of the first trust and filed with the records of | 3178 |
the first trust. | 3179 |
(E) The power to distribute trust income or principal to the | 3180 |
trustee of a second trust under division (A) or (B) of this | 3181 |
section shall not be exercised in a manner contrary to any | 3182 |
provision of section 2131.08 of the Revised Code to the extent | 3183 |
applicable to the first trust, and after applying the provisions | 3184 |
of division (B) of section 2131.09 of the Revised Code to the | 3185 |
extent applicable to the first trust. Solely for purposes of | 3186 |
applying under this division the provisions of section 2131.08 and | 3187 |
division (B) of section 2131.09 of the Revised Code, the exercise | 3188 |
of the power to distribute trust income or principal to the | 3189 |
trustee of a second trust under division (A) or (B) of this | 3190 |
section is considered the exercise of a power of appointment other | 3191 |
than a general power of appointment within the meaning of division | 3192 |
(B)(4) of section 2131.09 of the Revised Code. | 3193 |
(F) The trustee of the first trust shall notify all current | 3194 |
beneficiaries of the first trust, in writing, of the intended | 3195 |
distribution to the trustee of a second trust pursuant to division | 3196 |
(A) or (B) of this section not later than thirty days prior to | 3197 |
that distribution. The distribution may be made prior to the | 3198 |
expiration of thirty days from the date on which that notice is | 3199 |
given to all current beneficiaries of the first trust if all of | 3200 |
those current beneficiaries waive the thirty-day period from | 3201 |
receipt of that notice. The trustee's giving of notice of an | 3202 |
intended distribution under this division or the waiver or | 3203 |
expiration of that thirty-day period from receipt of the notice do | 3204 |
not limit the right of any beneficiary to object to the exercise | 3205 |
of the trustee's power to distribute trust principal as provided | 3206 |
in any other applicable provision of the Ohio Trust Code. | 3207 |
(G) Any person, other than the trustee, who has a power | 3208 |
exercisable in a fiduciary capacity to direct the trustee to make | 3209 |
any distribution of principal that, if held by the trustee, would | 3210 |
be a power to make a distribution as described in division (A) or | 3211 |
(B) of this section, may exercise that power by directing the | 3212 |
trustee to make a distribution under either division (A) or (B) of | 3213 |
this section, whichever would be applicable if that person were | 3214 |
the trustee, subject to all of the limitations described in this | 3215 |
section that apply to a trustee's exercise of that power. | 3216 |
(H) The exercise of the power to distribute trust income or | 3217 |
principal to the trustee of a second trust under division (A) or | 3218 |
(B) of this section is not prohibited by a spendthrift clause or a | 3219 |
provision in the trust instrument that prohibits the amendment or | 3220 |
revocation of the trust. | 3221 |
(I) For purposes of division (A) of section 5808.14 of the | 3222 |
Revised Code, a trustee who acts reasonably and in good faith in | 3223 |
exercising the power to distribute trust income or principal to | 3224 |
the trustee of a second trust in accordance with division (A) or | 3225 |
(B) of this section, is presumed to have acted in accordance with | 3226 |
the terms and purposes of the trust and the interests of the | 3227 |
beneficiaries. | 3228 |
(J) Nothing in this section is intended to create or imply a | 3229 |
duty to exercise a power to distribute income or principal of a | 3230 |
trust, and no inference of impropriety shall arise as a result of | 3231 |
a trustee not exercising the power to make any distribution to the | 3232 |
trustee of a second trust under division (A) or (B) of this | 3233 |
section. | 3234 |
(K) If the first trust is a testamentary trust established | 3235 |
under the will of a testator who was domiciled in this state at | 3236 |
the time of the testator's death, the power to distribute trust | 3237 |
income or principal to the trustee of a second trust under | 3238 |
division (A) or (B) of this section may be exercised only if | 3239 |
approved by the court, if any, that has jurisdiction over the | 3240 |
testamentary trust. | 3241 |
(L) Divisions (A) and (B) of this section do not apply to | 3242 |
either of the following: | 3243 |
(1) Any trust during any period that the trust may be revoked | 3244 |
or amended by its settlor; | 3245 |
(2) Any trustee with respect to any portion of the first | 3246 |
trust as to which that trustee is also the settlor. | 3247 |
(M) If, and to the extent that, a trustee makes any | 3248 |
distribution pursuant to division (A) or (B) of this section to | 3249 |
the trustee of a second trust, then for purposes of division (W) | 3250 |
of section 5801.01 of the Revised Code, the governing instrument | 3251 |
for the second trust is considered to be an amendment of the trust | 3252 |
instrument signed by the settlor of the first trust, even if that | 3253 |
governing instrument is signed by a person other than that | 3254 |
settlor. | 3255 |
(N) Nothing in this section shall be construed to limit the | 3256 |
power of any trustee to distribute trust property in further | 3257 |
trust, whether that power arises under the terms of the trust | 3258 |
instrument, under any other section of Title LVIII of the Revised | 3259 |
Code, under any other statute, or under the common law. The terms | 3260 |
of a trust instrument may do any of the following: | 3261 |
(1) Confer upon the trustee the power to make any | 3262 |
distribution, or confer upon any other person acting in a | 3263 |
fiduciary capacity the power to direct the trustee to make any | 3264 |
distribution, in further trust that is broader or more limited | 3265 |
than, or that conflict with, the provisions of this section; | 3266 |
(2) Provide for different requirements for notice to | 3267 |
beneficiaries of the trust of the trustee's exercise of the power | 3268 |
conferred under the terms of the trust instrument or described in | 3269 |
division (A) or (B) of this section; | 3270 |
(3) Waive any requirement of notice to the beneficiaries of | 3271 |
the trust of the trustee's exercise of the power conferred under | 3272 |
the terms of the trust instrument or described in division (A) or | 3273 |
(B) of this section; | 3274 |
(4) Otherwise include any terms and conditions governing the | 3275 |
distribution in further trust that the settlor of the trust | 3276 |
determines. | 3277 |
(O)(1) Division (A) of this section is intended to be a | 3278 |
codification of the common law of this state in effect prior to | 3279 |
the enactment of this section and applies to distributions, | 3280 |
whenever made, from any trust that is governed by the law of this | 3281 |
state or that has its principal place of administration in this | 3282 |
state, whether that trust was created before, on, or after the | 3283 |
effective date of this section. | 3284 |
(2) Division (B) of this section applies to distributions | 3285 |
made on or after the effective date of this section from any trust | 3286 |
that is governed by the law of this state or that has its | 3287 |
principal place of administration in this state, whether that | 3288 |
trust was created before, on, or after the effective date of this | 3289 |
section. | 3290 |
Sec. 5808.19. (A) As used in this section, unless otherwise | 3291 |
provided in any other provision in this section: | 3292 |
(1) "Beneficiary" means the beneficiary of a future interest | 3293 |
and includes a class member if the future interest is in the form | 3294 |
of a class gift. | 3295 |
(2) "Class member" means an individual who fails to survive | 3296 |
the distribution date by at least one hundred twenty hours but who | 3297 |
would have taken under a future interest in the form of a class | 3298 |
gift had the individual survived the distribution date by at least | 3299 |
one hundred twenty hours. | 3300 |
(3) "Descendant of a grandparent of the transferor" means an | 3301 |
individual who would qualify as a descendant of a grandparent of | 3302 |
the transferor under the rules of construction that would apply to | 3303 |
a class gift under the transferor's will to the descendants of the | 3304 |
transferor's grandparent. | 3305 |
(4) "Distribution date," with respect to a future interest, | 3306 |
means the time when the future interest is to take effect in | 3307 |
possession or enjoyment. The distribution date need not occur at | 3308 |
the beginning or end of a calendar day but may occur at a time | 3309 |
during the course of a day. | 3310 |
(5) "Future interest" means an alternative future interest or | 3311 |
a future interest in the form of a class gift. | 3312 |
(6) "Future interest under the terms of a trust" means a | 3313 |
future interest that was created by a transfer creating a trust or | 3314 |
a transfer to an existing trust, or by an exercise of a power of | 3315 |
appointment to an existing trust, that directs the continuance of | 3316 |
an existing trust, designates a beneficiary of an existing trust, | 3317 |
or creates a trust. | 3318 |
(7) "Per stirpes" means that the shares of the descendants of | 3319 |
a beneficiary who does not survive the distribution date by at | 3320 |
least one hundred twenty hours are determined in the same way they | 3321 |
would have been determined under division (A) of section 2105.06 | 3322 |
of the Revised Code if the beneficiary had died intestate and | 3323 |
unmarried on the distribution date. | 3324 |
(8) "Revocable trust" means a trust that was revocable | 3325 |
immediately before the settlor's death by the settlor alone or by | 3326 |
the settlor with the consent of any person other than a person | 3327 |
holding an adverse interest. A trust's characterization as | 3328 |
revocable is not affected by the settlor's lack of capacity to | 3329 |
exercise the power of revocation, regardless of whether an agent | 3330 |
of the settlor under a power of attorney, or a guardian of the | 3331 |
person or estate of the settlor, was serving. | 3332 |
(9) "Stepchild" means a child of the surviving, deceased, or | 3333 |
former spouse of the transferor and not of the transferor. | 3334 |
(10) "Transferor" means any of the following: | 3335 |
(a) The donor and donee of a power of appointment, if the | 3336 |
future interest was in property as a result of the exercise of a | 3337 |
power of appointment; | 3338 |
(b) The testator, if the future interest was devised by will; | 3339 |
(c) The settlor, if the future interest was conveyed by inter | 3340 |
vivos trust. | 3341 |
(B)(1)(a) As used in "surviving descendants" in divisions | 3342 |
(B)(2)(b)(i) and (ii) of this section, "descendants" means the | 3343 |
descendants of a deceased beneficiary or class member who would | 3344 |
take under a class gift created in the trust. | 3345 |
(b) As used in divisions (B)(2)(b)(i) and (ii) of this | 3346 |
section, "surviving beneficiaries" or "surviving descendants" | 3347 |
means beneficiaries or descendants, whichever is applicable, who | 3348 |
survive the distribution date by at least one hundred twenty | 3349 |
hours. | 3350 |
(2) Unless a contrary intent appears in the instrument | 3351 |
creating a future interest under the terms of a trust, each of the | 3352 |
following applies: | 3353 |
(a) A future interest under the terms of a trust is | 3354 |
contingent on the beneficiary's surviving the distribution date by | 3355 |
at least one hundred twenty hours. | 3356 |
(b) If a beneficiary of a future interest under the terms of | 3357 |
a trust does not survive the distribution date by at least one | 3358 |
hundred twenty hours and if the beneficiary is a grandparent of | 3359 |
the transferor, a descendant of a grandparent of the transferor, | 3360 |
or a stepchild of the transferor, either of the following applies: | 3361 |
(i) If the future interest is not in the form of a class gift | 3362 |
and the deceased beneficiary leaves surviving descendants, a | 3363 |
substitute gift is created in the beneficiary's surviving | 3364 |
descendants. The surviving descendants take, per stirpes, the | 3365 |
property to which the beneficiary would have been entitled had the | 3366 |
beneficiary survived the distribution date by at least one hundred | 3367 |
twenty hours. | 3368 |
(ii) If the future interest is in the form of a class gift, | 3369 |
other than a future interest to "issue," "descendants," "heirs of | 3370 |
the body," "heirs," "next of kin," "relatives," or "family," or a | 3371 |
class described by language of similar import, a substitute gift | 3372 |
is created in the surviving descendants of the deceased | 3373 |
beneficiary or beneficiaries. The property to which the | 3374 |
beneficiaries would have been entitled had all of them survived | 3375 |
the distribution date by at least one hundred twenty hours passes | 3376 |
to the surviving beneficiaries and the surviving descendants of | 3377 |
the deceased beneficiaries. Each surviving beneficiary takes the | 3378 |
share to which the surviving beneficiary would have been entitled | 3379 |
had the deceased beneficiaries survived the distribution date by | 3380 |
at least one hundred twenty hours. Each deceased beneficiary's | 3381 |
surviving descendants who are substituted for the deceased | 3382 |
beneficiary take, per stirpes, the share to which the deceased | 3383 |
beneficiary would have been entitled had the deceased beneficiary | 3384 |
survived the distribution date by at least one hundred twenty | 3385 |
hours. For purposes of division (B)(2)(b)(ii) of this section, | 3386 |
"deceased beneficiary" means a class member who failed to survive | 3387 |
the distribution date by at least one hundred twenty hours and | 3388 |
left one or more surviving descendants. | 3389 |
(C) For purposes of this section, each of the following | 3390 |
applies: | 3391 |
(1) Describing a class of beneficiaries as "surviving" or | 3392 |
"living," without specifying when the beneficiaries must be | 3393 |
surviving or living, such as a gift "for my spouse for life, then | 3394 |
to my surviving (or living) children," is not, in the absence of | 3395 |
other language in the trust instrument or other evidence to the | 3396 |
contrary, a sufficient indication of an intent to negate the | 3397 |
application of division (B)(2)(b) of this section. | 3398 |
(2) Subject to division (C)(1) of this section, attaching | 3399 |
words of survivorship to a future interest under the terms of a | 3400 |
trust, such as "for my spouse for life, then to my children who | 3401 |
survive my spouse" or "for my spouse for life, then to my | 3402 |
then-living children" is, in the absence of other language in the | 3403 |
trust instrument or other evidence to the contrary, a sufficient | 3404 |
indication of an intent to negate the application of division | 3405 |
(B)(2)(b) of this section. Words of survivorship under division | 3406 |
(C)(2) of this section include words of survivorship that relate | 3407 |
to the distribution date or to an earlier or an unspecified time, | 3408 |
whether those words of survivorship are expressed as | 3409 |
condition-precedent, condition-subsequent, or in any other form. | 3410 |
(3) A residuary clause in a will is not a sufficient | 3411 |
indication of an intent that is contrary to the application of | 3412 |
this section, whether or not the will specifically provides that | 3413 |
lapsed or failed devises are to pass under the residuary clause. A | 3414 |
residuary clause in a revocable trust instrument is not a | 3415 |
sufficient indication of an intent that is contrary to the | 3416 |
application of this section unless the distribution date is the | 3417 |
date of the settlor's death and the revocable trust instrument | 3418 |
specifically provides that upon lapse or failure the nonresiduary | 3419 |
devise, or nonresiduary devises in general, pass under the | 3420 |
residuary clause. | 3421 |
(D) If, after the application of divisions (B) and (C) of | 3422 |
this section there is no surviving taker of the property, and a | 3423 |
contrary intent does not appear in the instrument creating the | 3424 |
future interest, the property passes in the following order: | 3425 |
(1) If the future interest was created by the exercise of a | 3426 |
power of appointment, the property passes under the donor's | 3427 |
gift-in-default clause, if any, which clause is treated as | 3428 |
creating a future interest under the terms of a trust. | 3429 |
(2) If no taker is produced under division (D)(1) of this | 3430 |
section and the trust was created in a nonresiduary devise in the | 3431 |
transferor's will or in a codicil to the transferor's will, the | 3432 |
property passes under the residuary clause in the transferor's | 3433 |
will. For purposes of division (D)(2) of this section, the | 3434 |
residuary clause is treated as creating a future interest under | 3435 |
the terms of a trust. | 3436 |
(3) If no taker is produced under divisions (D)(1) and (2) of | 3437 |
this section, the transferor is deceased, and the trust was | 3438 |
created in a nonresiduary gift under the terms of a revocable | 3439 |
trust of the transferor, the property passes under the residuary | 3440 |
clause in the transferor's revocable trust instrument. For | 3441 |
purposes of division (D)(3) of this section, the residuary clause | 3442 |
in the transferor's revocable trust instrument is treated as | 3443 |
creating a future interest under the terms of a trust. | 3444 |
(4) If no taker is produced under divisions (D)(1), (2), and | 3445 |
(3) of this section, the property passes to those persons who | 3446 |
would succeed to the transferor's intestate estate and in the | 3447 |
shares as provided in the intestate succession law of the | 3448 |
transferor's domicile if the transferor died on the distribution | 3449 |
date. Notwithstanding division (A)(10) of this section, for | 3450 |
purposes of division (D)(4) of this section, if the future | 3451 |
interest was created by the exercise of a power of appointment, | 3452 |
"transferor" means the donor if the power is a nongeneral power, | 3453 |
or the donee if the power is a general power. | 3454 |
(E) This section applies to all trusts that become | 3455 |
irrevocable on or after the effective date of this section. This | 3456 |
section does not apply to any trust that was irrevocable before | 3457 |
the effective date of this section even if property was added to | 3458 |
the trust on or after that effective date. | 3459 |
Sec. 5809.031. (A) Notwithstanding any other provision of the | 3460 |
Ohio Uniform Prudent Investor Act, unless otherwise provided by | 3461 |
the terms of the trust, the duties of a trustee with respect to | 3462 |
the acquisition, retention, or ownership of a life insurance | 3463 |
policy as a trust asset do not include any of the following | 3464 |
duties: | 3465 |
(1) To determine whether the policy is or remains a proper | 3466 |
investment; | 3467 |
(2) To diversify the investment in the policy relative to any | 3468 |
other life insurance policies or to any other trust assets; | 3469 |
(3) To exercise or not to exercise any option, right, or | 3470 |
privilege available under the policy, including the payment of | 3471 |
premiums, unless there is sufficient cash or there are other | 3472 |
readily marketable trust assets from which to pay the premiums or | 3473 |
there are other trust assets that were designated by the settlor | 3474 |
or any other person transferring those assets to the trust to be | 3475 |
used for that purpose, regardless of whether that exercise or | 3476 |
nonexercise results in the lapse or termination of the policy; | 3477 |
(4) To investigate the financial strength or changes in the | 3478 |
financial strength of the life insurance company maintaining the | 3479 |
policy; | 3480 |
(5) To inquire about changes in the health or financial | 3481 |
condition of the insured or insureds under the policy. | 3482 |
(B) The trustee, the attorney who drafted a trust, or any | 3483 |
person who was consulted with regard to the creation of a trust, | 3484 |
in the absence of fraud, is not liable to the beneficiaries of the | 3485 |
trust or to any other person for any loss arising from the absence | 3486 |
of the duties specified in divisions (A)(1) to (5) of this | 3487 |
section. | 3488 |
(C) Unless otherwise provided by the terms of the trust, this | 3489 |
section applies to a trust established before, on, or after the | 3490 |
effective date of this section and to a life insurance policy | 3491 |
acquired, retained, or owned by a trustee before, on, or after the | 3492 |
effective date of this section. | 3493 |
Sec. 5810.09. A trustee is not liable to a beneficiary for | 3494 |
breach of trust if the beneficiary or the beneficiary's | 3495 |
representative under the representation provisions of Chapter | 3496 |
5803. of the Revised Code consented to the conduct constituting | 3497 |
the breach, released the trustee from liability for the breach, or | 3498 |
ratified the transaction constituting the breach, unless the | 3499 |
consent, release, or ratification of the beneficiary or | 3500 |
representative was induced by improper conduct of the trustee or, | 3501 |
at the time of the consent, release, or ratification, the | 3502 |
beneficiary or representative did not know of the beneficiary's | 3503 |
rights or of the material facts relating to the breach. | 3504 |
This section applies regardless of whether the conduct being | 3505 |
consented to, released, or ratified constitutes one or more | 3506 |
breaches of fiduciary duty, violates one or more provisions of the | 3507 |
Revised Code, or is taken without required court approval. | 3508 |
Sec. 5810.13. (A) Instead of furnishing a copy of the trust | 3509 |
instrument to a person other than a beneficiary, the trustee may | 3510 |
furnish to the person a certification of trust containing all of | 3511 |
the following information: | 3512 |
(1) A statement that the trust exists and the date the trust | 3513 |
instrument was executed; | 3514 |
(2) The identity of the settlor; | 3515 |
(3) The identity and address of the currently acting trustee; | 3516 |
(4) The powers of the trustee; | 3517 |
(5) The revocability or irrevocability of the trust and the | 3518 |
identity of any person holding a power to revoke the trust; | 3519 |
(6) The authority of cotrustees to sign or otherwise | 3520 |
authenticate and whether all or less than all are required in | 3521 |
order to exercise powers of the trustee. | 3522 |
(B) Any trustee may sign or otherwise authenticate a | 3523 |
certification of trust. | 3524 |
(C) A certification of trust shall state that the trust has | 3525 |
not been revoked, modified, or amended in any manner that would | 3526 |
cause the representations contained in the certification of trust | 3527 |
to be incorrect. | 3528 |
(D) A certification of trust is not required to contain the | 3529 |
dispositive terms of a trust. | 3530 |
(E) A certification of trust may establish the identity of | 3531 |
the trustee and any succession of trustees under division (B) or | 3532 |
(C) of section 5810.14 of the Revised Code. | 3533 |
(F) A recipient of a certification of trust may require the | 3534 |
trustee to furnish copies of those excerpts from the original | 3535 |
trust instrument and later amendments that designate the trustee | 3536 |
and confer upon the trustee the power to act in the pending | 3537 |
transaction. | 3538 |
| 3539 |
trust without knowledge that the representations contained in the | 3540 |
certification are incorrect is not liable to any person for so | 3541 |
acting and may assume without inquiry the existence of the facts | 3542 |
contained in the certification. Knowledge of the terms of the | 3543 |
trust may not be inferred solely from the fact that a copy of all | 3544 |
or part of the trust instrument is held by the person relying upon | 3545 |
the certification. | 3546 |
| 3547 |
in reliance upon a certification of trust may enforce the | 3548 |
transaction against the trust property as if the representations | 3549 |
contained in the certification were correct. | 3550 |
| 3551 |
memorandum of trust under section 5301.255 of the Revised Code. | 3552 |
| 3553 |
obtain a copy of the trust instrument in a judicial proceeding | 3554 |
concerning the trust. | 3555 |
Sec. 5810.14. (A) Personal property may be transferred to a | 3556 |
trustee as authorized by section 5804.01 of the Revised Code by | 3557 |
executing the necessary written instrument that identifies the | 3558 |
personal property transferred and identifies the trustee by name | 3559 |
followed by the designation "trustee." | 3560 |
(B) The future transfer of personal property to a trustee as | 3561 |
a designated beneficiary, including, but not limited to, a | 3562 |
transfer on death designation or payable on death designation, | 3563 |
participation in a joint ownership arrangement, or any other | 3564 |
contractual transfer arrangement, that is made by executing the | 3565 |
necessary written instrument identifying the trustee by name | 3566 |
followed by the designation "trustee" shall be considered a | 3567 |
transfer of the personal property to the trustee serving at the | 3568 |
time of the future transfer. A certification of trust under | 3569 |
section 5810.13 of the Revised Code may establish the identity of | 3570 |
the trustee and any succession of trustees. | 3571 |
(C) A written instrument transferring personal property to a | 3572 |
trust or a written instrument providing for the future transfer of | 3573 |
personal property to a trust, by identifying the trust without | 3574 |
identifying the trustee, shall be considered a transfer of the | 3575 |
personal property to the trustee serving at the time of transfer. | 3576 |
A certification of trust under section 5810.13 of the Revised Code | 3577 |
may establish the identity of the trustee and any succession of | 3578 |
trustees. | 3579 |
(D) An instrument of transfer under this section may, but is | 3580 |
not required to, contain any additional identifying information, | 3581 |
including the trust name, the name of the settlor, the date of | 3582 |
trust creation, and the date of applicable trust amendments. | 3583 |
(E) Nothing in this section is intended to affect the | 3584 |
operation of section 5301.03 of the Revised Code. | 3585 |
(F) Nothing in this section is intended to affect or be in | 3586 |
conflict with division (E) of section 5301.071 of the Revised Code | 3587 |
that addresses transfers of real property to or from trusts and | 3588 |
trustees. | 3589 |
Section 2. That existing sections 1337.092, 1337.12, | 3590 |
2101.24, 2109.21, 2111.02, 2111.12, 2111.121, 5301.071, 5747.02, | 3591 |
5801.10, 5804.11, 5804.12, 5808.02, 5808.14, 5808.17, 5810.09, and | 3592 |
5810.13 and sections 1337.09, 1337.091, 1337.093, 1337.18, | 3593 |
1337.19, 1337.20, and 2107.52 of the Revised Code are hereby | 3594 |
repealed. | 3595 |
Section 3. Section 2101.24 of the Revised Code is presented | 3596 |
in this act as a composite of the section as amended by both Sub. | 3597 |
H.B. 416 and Sub. H.B. 426 of the 126th General Assembly. The | 3598 |
General Assembly, applying the principle stated in division (B) of | 3599 |
section 1.52 of the Revised Code that amendments are to be | 3600 |
harmonized if reasonably capable of simultaneous operation, finds | 3601 |
that the composite is the resulting version of the section in | 3602 |
effect prior to the effective date of the section as presented in | 3603 |
this act. | 3604 |
Section 4. The General Assembly hereby declares its intent by | 3605 |
this act to clarify the procedure for resolution of issues created | 3606 |
by the past or future repeal or reenactment of the federal estate | 3607 |
tax, federal generation-skipping transfer tax, and Ohio estate | 3608 |
tax. | 3609 |