5 Common Misconceptions about a Power of Attorney

MISCONCEPTION #1. A power of attorney can be authorized at any time.

- I received a phone call asking me to draft a power of attorney. The caller said that she had just received certification from her father’s doctor stating that he is no longer competent. “Can you draft a power of attorney and living trust for my dad?” she asked. Unfortunately, I can’t do that. Once someone lacks legal capacity, they can no longer sign any legal document including a power of attorney or living trust, which of course is the purpose of the document. At this point, the only recourse is a guardianship proceeding through the courts, which can be extremely costly and time-consuming.

MISCONCEPTION #2. Power of Attorney documents are all the same. I’ll just download one from the web.

- Everyone's circumstances are unique. Without guidance from an experienced estate attorney, a generic POA document could expose your estate to legal challenges and interjections. Unfortunately, when problems with a POA are discovered it’s usually too late.

MISCONCEPTION #3. A Power of Attorney grants the agent the right to make any decision that they choose.

- Within a POA the agent has an obligation to make decisions that are in the best interests of the principal. While the POA grants authority, the right to act is based on fiduciary circumstances. If the action is not in the best interests of the principal, the agent does not have the right to act. In fact, many people fear signing a POA because they are concerned that their agent will mismanage their estate. Although the fiduciary obligation offers protection, it is important to choose someone that you trust to be your agent.

MISCONCEPTION #4. There is one standard Power of Attorney; it covers everything.

- It is much more flexible than that. The principal determines what powers to grant their agent in the document, which is why it’s important that it be drafted by an experienced attorney.

A general power of attorney governs all powers covered by a power of attorney, such as buying or selling property or otherwise managing one’s assets.
A limited or special power of attorney can grant very precise authorizations. For example, a power of attorney can be drafted which only grants the power to conduct a real estate sale.

MISCONCEPTION #5. Only a Durable Power of Attorney survives death.

-All powers of attorney terminate upon the principal’s death. The difference between a regular power of attorney and a durable power of attorney revolves primarily around incapacity.

A standard POA terminates upon death or incapacity. Once either of those events happens, the POA is invalid.
A Durable POA survives mental incapacity, but not death. The agent can act on the principal’s behalf even if the principal is declared mentally incompetent.

Grandparent custody right FAQs

If my son/daughter is divorced or going through a divorce, do I have visitation rights to see my grandchild?

Ohio law provides a grandparent with certain visitation rights with their grandchildren. A grandparent can file a motion with the court in a divorce, dissolution, legal separation or annulment for grandparent visitation rights. After hearing, the court will grant grandparents their own individual visitation rights involving a child if the person has an interest in the welfare of the child and if the court determines that the granting of the companionship for visitation rights is in the best interest of the child.

If my son/daughter is deceased, do I have visitation rights to see my grandchild?

The short answer is yes. Grandparents of a deceased parent can receive visitation rights. Ohio law states that if either the father or mother of an unmarried child is deceased the grandparents have the right to ask for visitation. The court will decide if it’s in the best interest of the child.The short answer is yes. Grandparents of a deceased parent can receive visitation rights. Ohio law states that if either the father or mother of an unmarried child is deceased the grandparents have the right to ask for visitation. The court will decide if it’s in the best interest of the child.

What if the parents of my grandchild were never married?

Yes, Ohio law provides visitation rights to a grandparent when the child’s mother is unmarried. The law says if a child is born to an unmarried woman, the grandparents have a right to request visitation rights. This includes both the biological father’s parents and mother’s parents. The court will determine what is in the best interest of the child with respect to any request.

What can be done if my grandchild is removed from the jurisdiction?

Any visitation request needs to be made in the Ohio County where the child lives. The only exception would be if a case had already been initiated in another county, then that county would retain jurisdiction.

What if my grandchild does not want to visit me?

It is up to the court to make a determination on this issue.

Do I have any financial liability if my grandchild visits me?

No. Child support is strictly between the biological parents.

Can I obtain legal custody of my grandchild?

It depends. In certain circumstances, Ohio law does allow a grandparent to obtain legal custody.
The court would need to determine the biological parents to be unfit.
The definition of unfit in Ohio generally means habitual drunkenness, habitual drug abuse, abandonment and other such issues that would again require the court to make a finding of unfitness.

What reasons allow grandparents to file for custody of a grandchild in Ohio?

Grandparents may seek custody when a parent is unable or unwilling to care for a child due to issues such as substance abuse, abandonment, incarceration, neglect, unsafe living conditions, serious health problems, or other circumstances affecting the child's well-being. The court will evaluate the facts of each case and determine whether granting custody to a grandparent is in the child's best interests.

How hard is it to get grandparents rights in Ohio?

The answer depends on whether a grandparent is seeking visitation rights or legal custody. Ohio law allows grandparents to request visitation in certain circumstances, including divorce, legal separation, or the death of a parent. Obtaining legal custody generally requires a higher legal standard and evidence that awarding custody to the grandparent would be in the child's best interests.

What if my grandchild doesn’t live in Ohio?

The state of the child’s residence is considered their “home state”, and that state would have jurisdiction as to whether or not visitation rights would be granted. Each state has different laws as pertains to visitation rights and the state with jurisdiction would need to be contacted in order to ascertain what if any rights the grandparent has in that particular state.

What if my grandchild already lives with me?

The law provides a solution for the situation where a child is living with the grandparent and the parents of the child can’t be found. Although, this is only a temporary solution and is not the same as legal custody, it does allow a grandparent to do what’s necessary for the child such as, enrolling the child in school, taking the child to the doctor, etc.
The law states that if a child is living with a grandparent who has made reasonable attempts to locate and contact both of the child’s parents, guardians, or custodians but has been unable to do so, the grandparent may then obtain the authority to exercise care and physical custody by executing a caretaker authorization affidavit.
The more common scenario is when grandparents are raising their grandchild or grandchildren with the knowledge and consent of the biological parents. Ohio law provides that in certain circumstances a parent may give a grandparent a Power of Attorney to enroll the child in school, care for the child’s medical needs, etc. This is similar to the caretaker affidavit, however, the parent is present and willing to execute a power of attorney.
Furthermore, the affidavit must be executed by both parents if they’re married and living together, if the child is subject to a shared parenting order or if the child is subject to a custody order.

If my grandchild is injured during a visit with me, can I get medical care for them during that visit?

Yes. If there is a court order allowing visitation and should the child need emergency medical care while under the care of a grandparent, they would be allowed to obtain medical treatment for the child while in their care.

I'm Chuck Bendig,

"For 40+ years, I've served Ohio residents. My private practice spans family law, estate planning, and personal injury cases. My commitment is rooted in genuine care for the individuals I serve."

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