SUMMARY – This legislation authorizes county sheriffs to issue licenses to carry concealed handguns to persons who have undergone investigation by the sheriff. The bill impacts probate courts in that when the court finds an individual to be a mentally ill person subject to hospitalization by court order, the Probate Judge who made the adjudication or the chief clinical officer of the facility in which the person is an involuntary patient, must notify the Bureau of Criminal Identification and Investigation (BCII) of the individual’s identity. The Attorney General shall prescribe and make available to all Probate Judges and chief clinical officers a form to be used by them for the purpose of making the notifications. The Probate Judges are required to report the identity to BCII of all individuals involuntarily committed on or after the effective date of the legislation, April 8, 2004. The notification must be transmitted by the judge or chief clinical officer no later than seven days after the adjudication of commitment.

The legislation requires the sheriff make a determination that the applicant has not been adjudicated as a mental defective, has not been committed to any mental institution, is not under adjudication of mental incompetence, and has not been found by a court to be a mentally ill person subject to hospitalization by court order.  The burden falls on the sheriff to examine records to make these determinations. 

AMENDS: 1547.69, 2911.21, 2913.02, 2921.13, 2923.11, 2923.12, 2923.121, 2923.122, 2923.123, 2923.13, 2923.16, 2929.14, 2953.32, and 4749.10
ENACTS: 109.69, 109.731, 181.251, 311.41, 311.42, 2923.124, 2923.125, 2923.126, 2923.127, 2923.128, 2923.129, 2923.1210, 2923.1211, 2923.1212, 2923.25, and 5122.311

SUMMARY – A Probate Judge may establish, by rule, procedures for resolution of disputes between parties to any civil action or proceeding. The judge may charge a fee not to exceed $15.00 on the filing of each action or proceeding in the probate court to implement the procedures. The Probate Judge may declare a surplus in the Dispute Resolution Fund and expend the surplus monies for other appropriate judicial expenses of the probate court. (Ohio R.C. 2101.163)

Ohio R.C. 2106.01 is amended to allow a surviving spouse to file a written waiver of the service of the citation to elect to exercise the spouse’s rights under Ohio R.C. 2106. The waiver shall include an acknowledgment of receipt of the description of the general rights of the surviving spouse required by Ohio R.C. 2106.02 (B). (New form 8.6)

The citation to make the spousal election under Ohio R.C. 2106.01 shall be served on the surviving spouse pursuant to Civ. R. 73. (Previous law required the court to serve the citation by certified mail.) (Ohio R.C. 2106.02)

Ohio R.C. 2106.02 is amended to provide if the will is admitted to probate and no fiduciary is appointed, the certificate of giving notice of the admission of the will to probate shall be filed no later than two (2) months after the admission of the will to probate. This supplements the requirement that the certificate of giving notice shall be filed no later than two (2) months after the appointment of the fiduciary.

In estates where the sole legatee, devisee, or heir is the administrator or executor of the estate, in closing the estate the fiduciary may file a certificate of termination or a final account. (Previous law only allowed the filing a certificate of termination.) (Ohio R.C. 2109.301)

Ohio R.C. 2109.32 is amended to require an executor or an administrator to file a Certificate of Service of Account (Form 13.9) prior to or simultaneously with the filing of an account.

Ohio R.C. 2117.06 is amended to change the time creditors may file claims against an estate and the procedure to file the claims against the estate. The time for presenting claims against the estate is reduced from one (1) year to six (6) months after the death of the decedent. A creditor shall file a claim against the estate with the executor or administrator after the appointment of the fiduciary and prior to the filing of the final account or certificate of termination for the estate. If the final account or certificate of termination has been filed, and the six (6) month time limit for creditors to file claims has not run, the creditor shall file the claim in writing to those distributees of the decedent's estate who may share liability for the payment of the claim.

If a claim is made against the distributees of the decedent's estate, only those distributees who have received timely presentation of the claim have any liability for payment of the claim. (Ohio R.C. 2113.53)

An executor, administrator, or distributee who received a presentation of claim and wishes to reject the creditors claim, shall do so by sending written notice of the disallowance of the claim pursuant to Civ. R. 73. Previous law required the notice be given to the claimant personally or by registered mail. (Ohio R. C. 2117.11)

The effective date of H.B. 51 is amended by H.B. 161. H.B. 51 originally stated all sections applied to estates that are in existence or initiated on or after the effective date of the act. H.B. 161 at section 3 makes the following modifications:

• Sections 2106.01, 2106.02, and 2109.32 of the Ohio R.C. applied to estates that are in existence or are initiated on or after April 8, 2004.

• Section 2101.163 of the Ohio R.C. applies to civil actions and proceedings that are pending in or brought before the probate court on or after April 8, 2004.

• Sections 2107.19, 2109.301, 2113.53, 2117.06, 2117.07, 2117.11, and 2117.12 of the Ohio R.C. apply to estates of decedents who die on or after April 8, 2004.

AMENDS: 2106.01, 2106.02. 2107.19, 2109.301, 2113.53, 2117.11, and 2117.12
ENACTS: 2101.163

SUMMARY – Permits the execution of a declaration for mental health treatment. Provides that the declaration will not supersede living wills or a health care power of attorney, however, the declaration will supersede that portion of a health care power of attorney authorizing mental health treatment. The declaration may authorize the designation of a “proxy” and an alternate proxy to make decisions in specified circumstances about the declarant’s mental health treatment.

To execute a mental health treatment declaration, the declarant must have the capacity to consent to mental health treatment. The declaration must be signed, dated, witnessed or acknowledged. (The proxy must also sign) The declaration is valid for three (3) years, unless it is operative, then it continues until the declarant has the capacity to consent. The declaration may continue beyond three (3) years if it designates a proxy but gives no specific mental health care instructions.

The declaration becomes operative when two physicians determine declarant does not have capacity to consent.

Declarant may revoke the declaration if he or she has the capacity to consent. A Probate Judge may revoke the declaration if the judge appoints a guardian for the declarant.

A proxy has the same right to information as the declarant and if the proxy receives information it is not a waiver of any evidentiary privilege.

The proxy and medical provider are not subject to civil, tort, or criminal liability if they act in good faith pursuant to a mental health treatment declaration.

AMENDS: 1337.11 and 1337.14
ENACTS: 2135.01 to 2135.14

SUMMARY – Historically, the Department of Job and Family Services has issued regulations regarding Special Needs Trusts. These regulations appear in the Ohio Administrative Code. The last significant modification of the Medicaid trust regulations occurred in 2002 when Ohio Administrative Code 5101: 1-39-27.1 was amended.

H.B. 85 codifies the Ohio Administrative Code dealing with Medicaid trusts in Ohio R.C. section 5111.151.  The bill codifies those portions of the administrative rule dealing with the treatment of Medicaid qualifying trusts established on or prior to August 10, 1993, a self-settled trust established after August, 11, 1993, exempt trusts, and trusts established by someone else for the benefit of a Medicaid applicant or recipient.

(The primary subject matter of H.B. 85 is ambulette/air medical transport licensing.)

Relevant to Probate Court Enacts 5111.151

AMENDS: 307.051, 307.055, 505.37, 505.375, 505.72, 4503.49, 4513.263, 4766.02, 4766.03, 4766.04, 4766.05, 4766.06, 4766.07, 4766.08, 4766.09, 4766.10, 4766.11, 4766.12, 4766.13, and 5503.12
ENACTS: 4766.15, 4766.17, 4766.20, and 5111.151

SUMMARY – Requires the executor, administrator, or commissioner of an estate of a decedent aged 55 or older to investigate whether a decedent received services under Medicaid and, if so, to notify the Medicaid Estate Recovery Program.  Requires the entity responsible for administering the Medicaid Estate Recovery Program to file a claim against the estate within 90 days of receiving notice or one year of the decedent’s death, whichever is later.  Requires that a person responsible for a decedent’s estate indicate on a probate form compliance with notice requirements if the decedent was a Medicaid recipient.

Amends Ohio R.C. 3770.12 dealing with transfer of lottery winnings.  Deletes language giving the probate court discretion to find the transfer fair and reasonable and in the best interest of the transferor.

AMENDS: 2113.041, 2117.06, 2117.25, 5111.111

SUMMARY – Enacts Ohio R.C. 3109.52 which permits a parent, guardian, or custodian of a child to create a power of attorney that grants to a grandparent of the child with whom the child is residing any of the parent, guardian, or custodian’s responsibilities regarding the care, physical custody or control of the child, including the ability to enroll the child in school and to consent to medical, psychological, and dental treatment for the child. The power of attorney may not be used to consent to marriage or adoption of the child. The power of attorney does not affect the rights of the parent, guardian, or custodian in any future proceedings concerning the child and does not grant legal custody to the attorney-in-fact.

Ohio R.C. 3109.57 provides the parent, guardian, or custodian may execute a power of attorney only under the following circumstances:

A)    The parent guardian or custodian is one of the following: 1) seriously ill, incarcerated or about to be incarcerated, 2) temporarily unable to provide financial support or parental guidance to the child, 3) temporarily unable to provide adequate care and supervision of the child because of physical or mental condition, 4) is homeless or without a residence because the current residence is destroyed or otherwise uninhabitable, and 5) in or about to enter a residential treatment program for substance abuse.

B) The parent guardian or custodian of the child believes the power of attorney is in the child’s best interest.

The legislation prescribes a statutory form power of attorney in Ohio R.C. 3109.53. The power of attorney is valid for a one-year period and is revoked if the child ceases to reside with the grandparent designated as attorney-in-fact and may be terminated by a court order.

A parent, guardian, or custodian who creates a power of attorney must file it with the juvenile court of the county in which the attorney-in-fact resides, or any other court that has jurisdiction over the child under a previously filed motion or proceeding (in the case of a guardian, the power of attorney would be filed in the probate court that has jurisdiction over the guardianship.) The power of attorney must be filed within five (5) days of execution.

The bill also creates Ohio R.C. 3109.65 which provides for a caretaker authorization affidavit. If a grandparent with whom a child is living cannot locate the parents, guardian, or custodian of the child, the grandparent may execute a caretaker authorization affidavit to obtain authority to exercise care, physical custody and control of the child.

NOTE: Ohio R.C. 2111.50(A)(2)(c) states “For good cause shown, the probate court may limit or deny, by order or rule, any power that is granted to a guardian by a section of the Revised Code, or relevant decisions of the courts of this state...” The Franklin County Probate Court will adopt a local rule prohibiting a guardian from executing a power of attorney pursuant to H.B. 130.

AMENDS: 3313.64, 3313.66, 3313.672

SUMMARY – Section 3 of H.B. 161 modified the effective date of H.B. 51 so that the six (6) month statute for a creditor to file a claim against a decedent’s estate applies to estates of decedents who die on or after April 8, 2004.

See H.B. 51 Summary above

SUMMARY – Bill clarifies the distribution of assets when a court terminates a trust under $100,000.  If the instrument does not provide for premature termination, the trust estate shall be distributed to the beneficiaries according to their respective interests in a manner the court determines to be equitable.  In making its determination, the court shall consider 1) any agreement among the beneficiaries, 2) the actuarial values of the separate beneficial interests, and 3) any preference of beneficiaries expressed in the trust instrument. (Ohio R.C. 1339.66 and 2109.62)

Enacts Ohio R.C. 1339.621 which provides if a principal designates a spouse as a power of attorney and subsequently gets divorced, or a full separation agreement, the power of attorney is revoked unless the document states otherwise. In that situation, an affidavit by the attorney in fact, absent fraud, is conclusive proof of non-revocation. (Ohio R.C. 1337.091)

Ohio R.C. 1339.411 is amended to provide a spendthrift provision of a trust shall not cause a forfeiture if property is granted to a surviving spouse and qualifies for a qualified terminable interest property deduction.

Language addressing harmless error in drafting wills, which was included in the original bill, was eliminated.

AMENDS: 1337.091, 1339.411, 1339.412, 1339.66, 2109.62
ENACTS: 1339.621

SUMMARY – This legislation implements the recommendations of the MRDD Victims of Crime Task Force. Ohio R.C. 5126.058 requires each county board of mental retardation and developmental disabilities to prepare a memorandum of understanding to set forth the normal operating procedure to be employed in handling emergency and non-emergency cases of abuse, neglect or exploitation. The Probate Judge of the county is required to sign the memorandum of understanding.

Ohio R.C. 5126.33-5126.333 provide modifications to current law regarding a probate court's issuance of an order authorizing a county MRDD board to arrange services for an adult with mental retardation or developmental disability by: 1) extending the period for the provision of services under the order to six months versus the current fourteen days and extending the possible renewal of services for an additional six months. 2) Enacting provisions regarding temporary orders relating to protective services. 3) Enacting provisions regarding the issuance by telephone of ex-parte emergency orders for protective services by a Probate Judge or magistrate on receipt of a notice from the county MRDD board of abuse, neglect or exploitation. 4) Providing procedures and guidelines regarding the orders. 5) Requiring the board to develop a detailed protective service plan. 6) Making other related changes.

An ex-parte emergency order by telephone shall be in effect for 24 hours and a probable cause hearing shall be held within 24 hours of the order. At the probable cause hearing, the court may issue temporary orders to protect the adult and may order emergency protective services. A temporary order issued is effective for 30 days and may be renewed for an additional 30 days.

AMENDS:109.572, 313.12, 2108.50, 2151.421, 2311.14, 2930.03, 5120.173, 5123.081, 5123.50, 5123.51, 5123.61, 5123.99, 5126.28, 5126.30, and 5126.33
ENACTS: 2108.521, 2152.821, 2903.341, 2930.061, 2945.482, 2945.491, 5123.032, 5123.541, 5123.542, 5123.614, 5126.058, 5126.331, 5126.332, and 5126.333