Living will requirements in Ohio

Which document is this, really

Ohio does not use one form for this. State law keeps two separate documents: a Declaration, which is what most people mean by a living will and is made under Ohio’s version of the Modified Uniform Rights of the Terminally Ill Act, and a Durable Power of Attorney for Health Care, which names the person who decides for you. The person you name is your attorney in fact, Ohio’s own term for the role, not agent or proxy or surrogate. Each document sits in its own chapter of the Ohio Revised Code, with its own signing rule and its own effective-date rule.

Ohio does not hand you a model form for either document. What the code does instead is regulate the forms that are sold here: R.C. 1337.17 allows a printed durable power of attorney for health care to be sold in Ohio for use by adults who are not advised by an attorney and sets out the notice such a form has to carry, and R.C. 2133.07 does the same for a printed Declaration. What makes either document valid is the execution rule in its own section rather than any particular wording, and R.C. 1337.13 asks only that a power of attorney substantially comply with R.C. 1337.12.

This is the pairing Myend’s Healthcare Directive prepares for Ohio: a Declaration for your treatment wishes, and a Durable Power of Attorney for Health Care for your attorney in fact, each ready for its own signing.

Who can make an Ohio advance directive

Ohio requires you to be an adult, defined as eighteen years of age or older, to execute either document. The Declaration adds one more condition in the same breath: you must be of sound mind when you sign, a practical standard rather than a medical one, meaning you understand what the Declaration says and what it does. The Durable Power of Attorney for Health Care chapter uses the same word, adult, for both you and the attorney in fact you name. Sound mind is not something you certify with a doctor beforehand; it is the standard your witnesses or your notary are affirming when they sign alongside you.

Signing it so it counts

Ohio gives you the identical choice on both documents: sign in front of two witnesses, or skip the witnesses and have your signature notarized instead. Because the Declaration and the Durable Power of Attorney for Health Care are separate statutes, though, each one has its own witness-disqualification list, and a witness who is fine for one is not automatically fine for the other.

The Declaration (living will)

1. 1You sign

   You sign the Declaration, or direct someone to sign for you in your presence.

2. 2Two witnesses, or a notary

   Two witnesses watch you sign, or a notary public acknowledges your signature and certifies that you appear to be of sound mind and free of duress, fraud, or undue influence. Either route makes the Declaration valid on its own.

3. 3If you use witnesses

   Your two witnesses cannot be a person related to you by blood, marriage, or adoption, your attending physician, or the administrator of any nursing home where you are receiving care.

The Durable Power of Attorney for Health Care

Naming your attorney in fact is a separate signing, on its own paper, with the same either/or choice: two witnesses, or a notary in place of both. This document’s witness bar is one category wider than the Declaration’s: your witnesses cannot be a person related to you by blood, marriage, or adoption, the person you are naming as your attorney in fact or alternate attorney in fact, your attending physician, or the administrator of any nursing home where you are receiving care.

Neither chapter addresses signing remotely or with an electronic signature, so the careful reading is paper, signed in person, with your witnesses actually present or your notary completing the acknowledgment face to face.

Naming your attorney in fact

The Durable Power of Attorney for Health Care is where you name your attorney in fact, the person who makes health care decisions for you once the document takes effect. R.C. 1337.12(A)(2) says you may designate any competent adult, then names who is out: your attending physician, the administrator of any nursing home where you are receiving care, an employee or agent of your attending physician, or an employee or agent of a health care facility where you are being treated, unless that employee or agent is a competent adult related to you by blood, marriage, or adoption, or you and that person belong to the same religious order. Naming an attorney in fact does not by itself hand over any authority; that happens only once the document takes effect, covered next.

When it takes effect

The two documents switch on differently. Your Declaration becomes operative under R.C. 2133.03 when four things are true together: it has been communicated to your attending physician, your attending physician and one other physician who has examined you both determine that you are in a terminal condition or a permanently unconscious state, your attending physician finds in good faith that there is no reasonable possibility you will regain the capacity to make informed decisions, and your attending physician determines you are no longer able to make those decisions yourself. That reading calls for two physicians, not one. For as long as you can still make informed decisions about life-sustaining treatment, R.C. 2133.06 leaves those decisions with you.

Your attorney in fact’s authority under the Durable Power of Attorney for Health Care switches on separately: your attending physician determines that you have lost the capacity to make your own health care decisions. On its face, that document does not ask for a second physician the way the Declaration does. Until the relevant determination is made and documented, your Declaration has no force and your attorney in fact has no authority to act on your behalf.

If you are pregnant

Ohio limits your Declaration during pregnancy, and the limit is written narrowly. R.C. 2133.06(B) says life-sustaining treatment will not be withheld or withdrawn under your Declaration if you are pregnant and if stopping the treatment would end the pregnancy, unless your attending physician and one other physician who has examined you determine, to a reasonable degree of medical certainty and in accordance with reasonable medical standards, that the fetus would not be born alive. There is no viability test and no gestational threshold in that sentence.

The Durable Power of Attorney for Health Care carries its own version of the limit, and the two are not identical. R.C. 1337.13(D) stops your attorney in fact from refusing or withdrawing care that would end a pregnancy, but it leaves two ways past it rather than one: the same two-physician determination that the fetus would not be born alive, or a finding that the pregnancy or the health care itself would pose a substantial risk to your life. Read the documents separately here. The Declaration’s sentence does not carry that second exception.

Changing or cancelling it

Ohio law generally lets you revoke either document at any time and in any manner that shows you mean to cancel it, for both the Declaration and the Durable Power of Attorney for Health Care. Once you revoke either one, tell your attorney in fact, your physician, and anyone else holding a copy. A document that is cancelled on paper but still sitting in an old file can cause real confusion in an emergency. Keep a note of when you revoked it and who you told, so there is no question later about which version is current.

Making sure it is found

Ohio does not appear to run a state registry for either document; neither chapter sets one up. The safeguard that does not depend on a state system is copies: give one to your attorney in fact, your physician, and the hospital you are most likely to use, and keep the signed originals where your family knows to look. If you signed a declaration in another state, R.C. 2133.14 treats it as valid in Ohio when it complied with that state’s law or substantially complies with Ohio’s.

A document nobody can find works the same as no document at all. The most common failure in an emergency is not a missing signature, it is paperwork sitting at home while the decision is being made at the hospital. Telling your attorney in fact plainly where both documents live closes most of that gap. And if you ever update either one, replace every copy you already handed out; an old version circulating alongside a new one is where confusion starts.

This is not a POLST

Ohio’s medical order program is generally called MOLST, Medical Orders for Life-Sustaining Treatment. It is a different kind of document from your Declaration or your Durable Power of Attorney for Health Care. A MOLST is a set of specific medical orders, signed by a clinician together with someone already facing serious illness, meant to travel with that person between hospital, nursing facility, home, and ambulance. Your Declaration and your Durable Power of Attorney for Health Care are something you put in place in advance, for a future you cannot yet see. Myend prepares the Declaration and the Durable Power of Attorney for Health Care. It does not, and cannot, produce a MOLST, because that has to come from a treating clinician.

What is different about Ohio

Ohio keeps the living will and the power of attorney as two separate statutes, then gives both of them the exact same signing choice.

Most states either combine the two jobs into one form or split them with different rules for each. Ohio splits them and keeps the signing rule identical: two witnesses, or a notary in place of both, whichever document you are signing. What changes between the two is not the choice, it is who is disqualified from witnessing, since the Durable Power of Attorney for Health Care also rules out the attorney in fact you are naming, a category the Declaration does not need because it names no one. The effective-date rule follows the same split: the Declaration asks for two physicians to certify a terminal condition or a permanently unconscious state, while the power of attorney turns on a single physician’s capacity determination.

The pregnancy rule adds its own twist, and it is the one place the two documents genuinely part company. Both carry a limit on care that would end a pregnancy. The Declaration’s sentence leaves a single exception, the two-physician finding that the fetus would not be born alive, while the power of attorney adds a second one for a pregnancy or a treatment that would pose a substantial risk to your life.

Ohio’s medical-orders program is generally known by its own label, MOLST, Medical Orders for Life-Sustaining Treatment, rather than another state’s. None of this makes Ohio unusually hard to plan in. It means knowing, before you sign anything, which of the two documents you are holding.

Common questions

Sources and review