Effective March 2012, Ohio adopted the Uniform Power of Attorney Act. As part of the newly enacted statutory scheme, the Ohio legislature included the protective statute, R.C. 1337.36, the stated purpose of which is to protect a vulnerable or incapacitated principal against financial abuse brought upon by the agent acting under the power of attorney. The section provides that certain enumerated persons may petition a court to contest a power of attorney, authorizing the court to construe the document or review the agent's conduct. Although R.C. 1337.36(A) appears to allow any party to file a petition, the statute does not relieve the petitioner from the burden of demonstrating standing to invoke the jurisdiction of the court in the first place. If defending against a petition filed pursuant to the act, standing should be the first issue analyzed to prevent abuses of the statute.
The Uniform Power of Attorney Act was drafted to limit the parties authorized to gain access to the principal’s private, financial information. R.C. 1337.34(H). The drafters included a relief mechanism in R.C. 1337.36 by enlarging those individuals who have authority to protect the interests of the principal, however, the section protects the self-determination rights of the principal through R.C. 1337.36(b), which provides that the principal may petition the court for dismissal of the petition filed pursuant to R.C. 1337.36. Id. The statute is drafted broadly. A party, however, must do more than allege a right to file the petition based on R.C. 1337.36 in order to invoke the jurisdiction of the trial court. Lippert v. Lippert, 2011 WI App 99, 34 Wis. 2d 808; 800 N.W.2d 958.
In reviewing Wisconsin’s version of the Judicial Relief statute, Wis.Stat § 244.16, adopting the Uniform Power of Attorney Act § 116 and identical to R.C. 1337.36, a Wisconsin Court of Appeals noted that a party does not have an absolute right to file a petition to review a power of attorney or the agents conduct absent specific allegations of misconduct. Lippert at ¶ 3. In that case, the dismissal of the petition was affirmed because “the threshold basis for reviewing the files [had] not been met,” in light of the fact that there were no allegations of misconduct beyond suspicion of improper behavior. Id. at ¶ 4.
Ohio courts follow this same principle. In In re Estate of Rand, 8th Dist. No. 99678, 2013-Ohio-4709, two beneficiaries of a will, both of whom received specific bequests, filed exceptions to the inventory prepared by the fiduciaries of the estate. Id. at ¶ 1. Those beneficiaries were unable to demonstrate a justiciable controversy, instead, claiming their statutory right to file a claim. Id. The Eighth District dismissed the appeal because the appellants were unable to demonstrate standing, stating that while a statutory sections grants certain parties the right to file an action, “the type of substantial right needed to appeal under R.C. 2505.02(B)(1) requires more than merely an intellectual or curious interest in the outcome of the litigation.” Id. at ¶ 6.
In other words, the mere fact a statute provides the procedure to file a claim, does not mean the party has standing to file or prosecute that action. A justiciable controversy must be alleged beyond a rote recitation of the type of action being filed, in order to invoke the court’s jurisdiction to review the matter. When facing a petition to contest a power of attorney, filed pursuant to R.C. 1337.36, the petitioner must allege specific acts of misconduct before the court allows discovery into the principle’s private, financial information. The first defense analyzed when responding to any such petition should be the petitioner’s standing.
