Probate and Healthcare Law Updates- Effective Spring 2017

Lisa Bitter, Esq.

Ohio House Bills 432 and 451, effective April 6, 2017 and Senate Bill 232, effective March 14, 2017 impact probate law and healthcare law, respectively, in Ohio.

Omnibus Probate Bill, House Bill 432

The Omnibus Probate Bill, House Bill 432, includes broad changes, including creation of Ohio's Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). That act provides fiduciaries access to digital assets after the owner's death. We mentioned the need to address this issue in Ohio in an earlier BYH Newsletter article titled, What happens to cryptocurrency when we die?

There we delved into the world of digital currency and linked to an even earlier article where we explored issues related to the challenges associated with accessing online accounts with banks, social media and others digital media following the death of a loved one.

With the RUFADAA in place fiduciaries now enjoy access to such digital accounts under the same legal standards applied to tangible property. Key sections provide:

An account holder may give direction for disclosure via online tools or more traditional methods, such as a will or power of attorney.

The custodian of a digital account, upon receipt of documentation evidencing consent by the decedent, must comply with a request for information within 60 days, and a fiduciary may seek a court order for failure to comply.

A court may grant a guardian access to the digital assets of a ward, and the guardian may request the suspension or termination of a digital account.

Ohio's statutory Power of Attorney form now addresses digital assets and electronic communications.

Other changes impacting the Ohio Estate Administration and Health Care Law under the Omnibus Probate Bill, House Bill 432 include:

Lifting the limit of a two car auto allowance enabling a surviving spouse to transfer interest in more than two vehicles from the decedent's estate, up to a maximum total value of $65,000 (increased from $40,000).

Allowing guardians to sell real estate by filing written consent forms rather than requiring the filing of a separate legal case. Such sales by consent now follow the same process used to sell the real property of a decedent.

Easing the administrative burdens under The Ohio Transfers to Minors Act by increasing the transfer amount requiring court authorization from $10,000 to $25,000 and designation of successor custodians which all minimize court involvement. Finally, a custodian may now hold property past the date the minor turns 21 so long as the later age or date (not to exceed the date the minor turns 25) is specified in a written instrument.

Expanding the Ohio Trust Code to allow a holder of certain limited powers of appointment to represent and bind possible appointees provided no conflict of interest exists.

Allowing limited authorization given to an agent under a power of attorney to create a trust for incapacitated principals.

House Bill 432

House Bill 432 addresses the uniform simultaneous death act, will deposit fees and the will deposit statute, passing of a testator's property if a beneficiary prevents or neglects probate for one year, actions of the Franklin County Guardianship Service Board and removal of computerization fee increases.

Senate Bill 232

Senate Bill 232 addresses transfer on death designations for real property with statutes that forfeit spousal rights of the designated beneficiary following a divorce, dissolution or annulment with the real property now passing as though the former spouse predeceased the owner.

Rights of children born via assisted reproductive technology (ART) but after the death of the decedent are addressed. A child born via ART more than 300 days after the death of a trust settlor shall be considered a child of the settlor, or will only be included in a beneficiary class, if the trust so provides in clear language. The trust can only extend the time period to a maximum of five years and must clearly state such a time period. If the trust provides for persons born via ART but does not provide a time period, the maximum time allowed will be one year and 300 days.

House Bill 451

House Bill 451 addresses decisions regarding life-sustaining treatment, including the right of certain relatives and spouses to decide whether or not to withhold or withdraw life-sustaining treatment from a patient are addressed in House Bill 451. Such rights are forfeited where: 1) a divorce, dissolution, legal separation or annulment exists; 2) a civil protection order against the individual exists in favor of the patient; or 3) criminal conduct of the person seeking to make the decision led to the patient's condition.

Should you have any questions regarding application of these new laws to your circumstances do not hesitate to call Lisa Bitter with BYH at 513-721-5672.