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Who Decides If You Cannot

ORC 2133.08 — the order that applies when nothing was signed

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Two different documents cover this and people use the names interchangeably. A health care power of attorney names a person to decide. A living will states what somebody wants in specific circumstances. They do different jobs and having one is not having the other.

With neither one, the section supplies an order, and it is not the family's order. Where there is no document and the medical conditions the chapter describes are met, consent to withholding or withdrawing life sustaining treatment comes from a list in a set sequence. It begins with a guardian, if there is one. It runs through classes including the adult children of the patient, where a majority of those available within a reasonable time decide, and the adult siblings on the same majority basis. Which class is reached depends on who exists and who is available, not on who was closest.

The precise order of every class is in the section itself, and this page does not reproduce all of it, because an order printed slightly wrong would be worse than no order at all. What is worth taking from it is that an order exists, that it is fixed, and that signing a health care power of attorney is what replaces it with a name.

A spouse in the middle of a divorce is not competent to decide. Where the person who would otherwise decide and the patient are married and are parties to a pending divorce, dissolution, legal separation or annulment, that individual is not competent to make the decision and it passes to the next individual or class. The marriage still exists on paper, and the section removes the authority anyway.

A health care power of attorney is executed differently from a financial one. That document needs either notarisation or two adult witnesses, where the financial one does not require witnesses under its own execution section.

“Is there a signed document, and does anybody know where it is.”

The medical conditions that have to be present before this section operates at all, do not resuscitate orders, advance directives for mental health treatment, and the immunities the chapter gives providers each sit in their own sections and are not on this page. Whether a particular situation has reached the point the chapter describes is a medical and legal question at once. Drafting, changing or interpreting any of these documents is a matter for a licensed Ohio attorney, and hospital ethics committees and senior legal services offices advise on them.

Sources for this section (2)
  1. ORC 2133.08 — Who may consent to withholding life sustaining treatment where there is no document, and in what order
  2. ORC 1337.25 — Executing a power of attorney, and the acknowledgement that presumes a signature genuine

Legal information, not legal advice. Verified as of September 2026. Talk to a licensed Ohio attorney about your situation.

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