Sec. 1337.12. (A)(1) An adult who is of sound mind | 18 |
voluntarily may create a valid durable power of attorney for | 19 |
health care by executing a durable power of attorney, in | 20 |
accordance with section 1337.24 of the Revised Code, that | 21 |
authorizes an attorney in fact as described in division (A)(2) of | 22 |
this section to make health care decisions for the principal at | 23 |
any time that the attending physician of the principal determines | 24 |
that the principal has lost the capacity to make informed health | 25 |
care decisions for the principal. The durable power of attorney | 26 |
for health care may authorize the attorney in fact, commencing | 27 |
immediately upon the execution of the instrument or at any | 28 |
subsequent time and regardless of whether the principal has lost | 29 |
the capacity to make informed health care decisions, to obtain | 30 |
information concerning the principal's health, including protected | 31 |
health information as defined in 45 C.F.R. 160.103. Except as | 32 |
otherwise provided in divisions (B) to (F) of section 1337.13 of | 33 |
the Revised Code, the authorization may include the right to give | 34 |
informed consent, to refuse to give informed consent, or to | 35 |
withdraw informed consent to any health care that is being or | 36 |
could be provided to the principal. Additionally, to be valid, a | 37 |
durable power of attorney for health care shall satisfy both of | 38 |
the following: | 39 |
(2) Except as otherwise provided in this division, a durable | 45 |
power of attorney for health care may designate any competent | 46 |
adult as the attorney in fact. The attending physician of the | 47 |
principal and an administrator of any nursing home in which the | 48 |
principal is receiving care shall not be designated as an attorney | 49 |
in fact in, or act as an attorney in fact pursuant to, a durable | 50 |
power of attorney for health care. An employee or agent of the | 51 |
attending physician of the principal and an employee or agent of | 52 |
any health care facility in which the principal is being treated | 53 |
shall not be designated as an attorney in fact in, or act as an | 54 |
attorney in fact pursuant to, a durable power of attorney for | 55 |
health care, except that these limitations do not preclude a | 56 |
principal from designating either type of employee or agent as the | 57 |
principal's attorney in fact if the individual is a competent | 58 |
adult and related to the principal by blood, marriage, or | 59 |
adoption, or if the individual is a competent adult and the | 60 |
principal and the individual are members of the same religious | 61 |
order. | 62 |
(3) A durable power of attorney for health care shall not | 63 |
expire, unless the principal specifies an expiration date in the | 64 |
instrument. However, when a durable power of attorney contains an | 65 |
expiration date, if the principal lacks the capacity to make | 66 |
informed health care decisions for the principal on the expiration | 67 |
date, the instrument shall continue in effect until the principal | 68 |
regains the capacity to make informed health care decisions for | 69 |
the principal. | 70 |
(B) If witnessed for purposes of division (A)(1)(b) of this | 71 |
section, a durable power of attorney for health care shall be | 72 |
witnessed by at least two individuals who are adults and who are | 73 |
not ineligible to be witnesses under this division. Any person who | 74 |
is related to the principal by blood, marriage, or adoption, any | 75 |
person who is designated as the attorney in fact or alternate | 76 |
attorney in fact in the instrument, the attending physician of the | 77 |
principal, and the administrator of any nursing home in which the | 78 |
principal is receiving care are ineligible to be witnesses. | 79 |
The witnessing of a durable power of attorney for health care | 80 |
shall involve the principal signing, or acknowledging the | 81 |
principal's signature, at the end of the instrument in the | 82 |
presence of each witness. Then, each witness shall subscribe the | 83 |
witness's signature after the signature of the principal and, by | 84 |
doing so, attest to the witness's belief that the principal | 85 |
appears to be of sound mind and not under or subject to duress, | 86 |
fraud, or undue influence. The signatures of the principal and the | 87 |
witnesses under this division are not required to appear on the | 88 |
same page of the instrument. | 89 |
(D)(1) If a principal has both a valid durable power of | 96 |
attorney for health care and a valid declaration, division (B) of | 97 |
section 2133.03 of the Revised Code applies. If a principal has | 98 |
both a valid durable power of attorney for health care and a DNR | 99 |
identification that is based upon a valid declaration and if the | 100 |
declaration supersedes the durable power of attorney for health | 101 |
care under division (B) of section 2133.03 of the Revised Code, | 102 |
the DNR identification supersedes the durable power of attorney | 103 |
for health care to the extent of any conflict between the two. A | 104 |
valid durable power of attorney for health care supersedes any DNR | 105 |
identification that is based upon a do-not-resuscitate order that | 106 |
a physician issued for the principal which is inconsistent with | 107 |
the durable power of attorney for health care or a valid decision | 108 |
by the attorney in fact under a durable power of attorney. | 109 |
(E)(1) In a durable power of attorney for health care, a | 115 |
principal may nominate a guardian of the principal's person, | 116 |
estate, or both for consideration by a court if proceedings for | 117 |
the appointment of a guardian for the principal's person, estate, | 118 |
or both are commenced at a later time. The principal may authorize | 119 |
the person nominated as the guardian or the attorney in fact to | 120 |
nominate a successor guardian for consideration by the court. The | 121 |
principal's nomination of a guardian of the principal's person, | 122 |
estate, or both is revoked by the principal's subsequent | 123 |
nomination of a guardian of the principal's person, estate, or | 124 |
both, and, except for good cause shown or disqualification, the | 125 |
court shall make its appointment in accordance with the | 126 |
principal's most recent nomination. | 127 |
(4) If a guardian is appointed for the principal, a durable | 136 |
power of attorney for health care is not terminated, and the | 137 |
authority of the attorney in fact continues unless the court, | 138 |
pursuant to its authority under section 2111.50 of the Revised | 139 |
Code, limits, suspends, or terminates the power of attorney after | 140 |
notice to the attorney in fact and upon a finding that the | 141 |
limitation, suspension, or termination is in the best interest of | 142 |
the principal. | 143 |
Sec. 1337.13. (A)(1) An attorney in fact under a durable | 144 |
power of attorney for health care shall make health care decisions | 145 |
for the principal only if the instrument substantially complies | 146 |
with section 1337.12 of the Revised Code and specifically | 147 |
authorizes the attorney in fact to make health care decisions for | 148 |
the principal, and only if the attending physician of the | 149 |
principal determines that the principal has lost the capacity to | 150 |
make informed health care decisions for the principal. If | 151 |
authorized in the instrument, the attorney in fact, commencing | 152 |
immediately upon the execution of the instrument or at any | 153 |
subsequent time specified in the instrument and regardless of | 154 |
whether the principal has lost the capacity to make informed | 155 |
health care decisions, may obtain information concerning the | 156 |
principal's health, including protected health information as | 157 |
defined in 45 C.F.R. 160.103. Except as otherwise provided in | 158 |
divisions (B) to (F) of this section and subject to any specific | 159 |
limitations in the instrument, the attorney in fact may make | 160 |
health care decisions for the principal to the same extent as the | 161 |
principal could make those decisions for the principal if the | 162 |
principal had the capacity to do so. Except as otherwise provided | 163 |
in divisions (B) to (F) of this section, in exercising that | 164 |
authority, the attorney in fact shall act consistently with the | 165 |
desires of the principal or, if the desires of the principal are | 166 |
unknown, shall act in the best interest of the principal. | 167 |
(2) In order for an attorney in fact to refuse or withdraw | 186 |
informed consent to life-sustaining treatment for a principal who | 187 |
is in a permanently unconscious state, the consulting physician | 188 |
associated with the determination that the principal is in the | 189 |
permanently unconscious state shall be a physician who, by virtue | 190 |
of advanced education or training, of a practice limited to | 191 |
particular diseases, illnesses, injuries, therapies, or branches | 192 |
of medicine and surgery or osteopathic medicine and surgery, of | 193 |
certification as a specialist in a particular branch of medicine | 194 |
or surgery or osteopathic medicine and surgery, or of experience | 195 |
acquired in the practice of medicine and surgery or osteopathic | 196 |
medicine and surgery, is qualified to determine whether the | 197 |
principal is in a permanently unconscious state. | 198 |
(3) In order for an attorney in fact to refuse or withdraw | 199 |
informed consent to life-sustaining treatment for a principal who | 200 |
is in a terminal condition or in a permanently unconscious state, | 201 |
the attending physician of the principal shall determine, in good | 202 |
faith, to a reasonable degree of medical certainty, and in | 203 |
accordance with reasonable medical standards, that there is no | 204 |
reasonable possibility that the principal will regain the capacity | 205 |
to make informed health care decisions for the principal. | 206 |
(C) Except as otherwise provided in this division, an | 207 |
attorney in fact under a durable power of attorney for health care | 208 |
does not have authority, on behalf of the principal, to refuse or | 209 |
withdraw informed consent to health care necessary to provide | 210 |
comfort care. This division does not preclude, and shall not be | 211 |
construed as precluding, an attorney in fact under a durable power | 212 |
of attorney for health care from refusing or withdrawing informed | 213 |
consent to the provision of nutrition or hydration to the | 214 |
principal if, under the circumstances described in division (E) of | 215 |
this section, the attorney in fact would not be prohibited from | 216 |
refusing or withdrawing informed consent to the provision of | 217 |
nutrition or hydration to the principal. | 218 |
(D) An attorney in fact under a durable power of attorney for | 219 |
health care does not have authority to refuse or withdraw informed | 220 |
consent to health care for a principal who is pregnant if the | 221 |
refusal or withdrawal of the health care would terminate the | 222 |
pregnancy, unless the pregnancy or the health care would pose a | 223 |
substantial risk to the life of the principal, or unless the | 224 |
principal's attending physician and at least one other physician | 225 |
who has examined the principal determine, to a reasonable degree | 226 |
of medical certainty and in accordance with reasonable medical | 227 |
standards, that the fetus would not be born alive. | 228 |
(a) Including a statement in capital letters or other | 246 |
conspicuous type, including, but not limited to, a different font, | 247 |
bigger type, or boldface type, that the attorney in fact may | 248 |
refuse or withdraw informed consent to the provision of nutrition | 249 |
or hydration to the principal if the principal is in a permanently | 250 |
unconscious state and if the determination described in division | 251 |
(E)(1) of this section is made, or checking or otherwise marking a | 252 |
box or line that is adjacent to a similar statement on a printed | 253 |
form of a durable power of attorney for health care; | 254 |
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 or incompetent adult | 278 |
children, whether born at the time of the execution of the power | 279 |
of attorney or afterward. The nomination is for consideration by a | 280 |
court if proceedings for the appointment of a guardian for the | 281 |
principal's person, estate, or both or if proceedings for the | 282 |
appointment of a guardian of the person, the estate, or both of | 283 |
one or more of the principal's minor children or incompetent adult | 284 |
children are commenced at a later time. The principal may | 285 |
authorize the person nominated as guardian or the agent to | 286 |
nominate a successor guardian for consideration by a court. Except | 287 |
The principal's nomination of a guardian of the principal's | 288 |
person, estate, or both or the principal's nomination of a | 289 |
guardian of the person, the estate, or both of one or more of the | 290 |
principal's minor children or incompetent adult children is | 291 |
revoked by the principal's subsequent nomination of a guardian of | 292 |
the principal's person, estate, or both or the principal's | 293 |
subsequent nomination of a guardian of the person, the estate, or | 294 |
both of one or more of the principal's minor children or | 295 |
incompetent adult children, and, except for good cause shown or | 296 |
disqualification, the court shall make its appointment in | 297 |
accordance with the principal's most recent nomination. Nomination | 298 |
of a person as a guardian or successor guardian of the person, the | 299 |
estate, or both of one or more of the principal's minor children | 300 |
or incompetent adult children under this division, and any | 301 |
subsequent appointment of the guardian or successor guardian as | 302 |
guardian under section 2111.02 of the Revised Code, does not | 303 |
vacate the jurisdiction of any other court that previously may | 304 |
have exercised jurisdiction over the person of the minor or | 305 |
incompetent adult child. | 306 |
(C) If, after a principal executes a power of attorney, a | 309 |
court appoints a guardian of the principal's estate or other | 310 |
fiduciary charged with the management of some or all of the | 311 |
principal's property, the agent is accountable to the fiduciary as | 312 |
well as to the principal. The power of attorney is not terminated | 313 |
and the agent's authority continues unless limited, suspended, or | 314 |
terminated by the court after notice to the agent and upon a | 315 |
finding that the limitation, suspension, or termination would be | 316 |
in the best interest of the principal. | 317 |
Sec. 2111.121. (A) A person may nominate in a writing, as | 326 |
described in this division, another person to be the guardian of | 327 |
the nominator's person, estate, or both or the guardian of the | 328 |
person, the estate, or both, of one or more of the nominator's | 329 |
minor or incompetent adult children, whether born at the time of | 330 |
the execution of the writing or afterward, subject to notice and a | 331 |
hearing pursuant to section 2111.02 of the Revised Code. The | 332 |
nomination is for consideration by a court if proceedings for the | 333 |
appointment of a guardian of the person, the estate, or both, for | 334 |
the person making the nomination or if proceedings for the | 335 |
appointment of a guardian as the guardian of the person, the | 336 |
estate, or both of one or more of the nominator's minor or | 337 |
incompetent adult children are commenced at a later time. The | 338 |
person may authorize, in a writing of that nature, the person | 339 |
nominated as guardian to nominate a successor guardian for | 340 |
consideration by a court. The person also may direct, in a writing | 341 |
of that nature, that bond be waived for a person nominated as | 342 |
guardian in it or nominated as a successor guardian in accordance | 343 |
with an authorization in it. | 344 |
(B) If a person has nominated, in a writing as described in | 352 |
division (A) of this section, another person to be the guardian of | 353 |
the nominator's person, estate, or both, and proceedings for the | 354 |
appointment of a guardian for the person are commenced at a later | 355 |
time, the court involved shall appoint the person nominated as | 356 |
guardian in the writing most recently executed if the person | 357 |
nominated is competent, suitable, and willing to accept the | 358 |
appointment.A person's nomination, in a writing as described in | 359 |
division (A) of this section, of a guardian of the nominator's | 360 |
person, estate, or both or of a guardian of the person, the | 361 |
estate, or both of one or more of the nominator's minor children | 362 |
or incompetent adult children is revoked by the person's | 363 |
subsequent nomination, in a writing as described in division (A) | 364 |
of this section, of a guardian of the nominator's person, estate, | 365 |
or both or of a guardian of the person, the estate, or both of one | 366 |
or more of the nominator's minor children or incompetent adult | 367 |
children, and, except for good cause shown or disqualification, | 368 |
the court shall make its appointment in accordance with the | 369 |
person's most recent nomination. If the writing contains a waiver | 370 |
of bond, the court shall waive bond of the person nominated as | 371 |
guardian unless it is of the opinion that the interest of the | 372 |
trust demands it. | 373 |
(C) Nomination of a person as a guardian or successor | 374 |
guardian of the person, the estate, or both of one or more of the | 375 |
nominator's minor or incompetent adult children under division (A) | 376 |
of this section, and any subsequent appointment of the guardian or | 377 |
successor guardian as guardian under section 2111.02 of the | 378 |
Revised Code, does not vacate the jurisdiction of any other court | 379 |
that previously may have exercised jurisdiction over the person of | 380 |
the minor or incompetent adult child. | 381 |
Sec. 2133.04. (A) A declarant may revoke a declaration at | 388 |
any time and in any manner. The revocation shall be effective when | 389 |
the declarant expresses an intention to revoke the declaration, | 390 |
except that, if the declarant made the declarant's attending | 391 |
physician aware of the declaration, the revocation shall be | 392 |
effective upon its communication to the attending physician of the | 393 |
declarant by the declarant, a witness to the revocation, or other | 394 |
health care personnel to whom the revocation is communicated by | 395 |
that witness. Absent actual knowledge to the contrary, the | 396 |
attending physician of a declarant and other health care personnel | 397 |
who are informed of the revocation of a declaration by an alleged | 398 |
witness may rely on the information and act in accordance with the | 399 |
revocation. | 400 |