As Introduced
135th General Assembly
Regular Session H. B. No. 696
2023-2024
Representative Mathews
A BILL
To amend sections 1336.04, 1336.05, 1336.09, 1
1337.34, 1337.36, 1337.42, 1337.52, 2109.21, 2
2109.25, 2117.02, 2129.08, 5701.11, 5801.04, 3
5801.07, 5806.02, 5806.03, 5808.19, 5810.08, 4
5812.43, 5815.25, and 5816.11; to enact sections 5
5808.161, 5818.01, 5818.011, 5818.02, 5818.03, 6
5818.04, 5818.05, 5818.06, 5818.07, 5818.08, 7
5818.09, 5818.10, 5818.11, 5818.12, 5818.13, 8
5818.14, 5818.15, 5818.16, 5818.17, 5818.18, 9
5818.19, 5818.20, 5818.21, 5818.22, 5818.23, 10
5818.24, 5818.25, 5818.26, 5818.27, 5818.28, 11
5818.29, 5818.30, 5818.31, 5818.32, and 5818.33; 12
and to repeal section 5808.08 of the Revised 13
Code to modify trust and probate laws. 14
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1336.04, 1336.05, 1336.09, 15
1337.34, 1337.36, 1337.42, 1337.52, 2109.21, 2109.25, 2117.02, 16
2129.08, 5701.11, 5801.04, 5801.07, 5806.02, 5806.03, 5808.19, 17
5810.08, 5812.43, 5815.25, and 5816.11 be amended and sections 18
5808.161, 5818.01, 5818.011, 5818.02, 5818.03, 5818.04, 5818.05, 19
5818.06, 5818.07, 5818.08, 5818.09, 5818.10, 5818.11, 5818.12, 20
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As Introduced
5818.13, 5818.14, 5818.15, 5818.16, 5818.17, 5818.18, 5818.19, 21
5818.20, 5818.21, 5818.22, 5818.23, 5818.24, 5818.25, 5818.26, 22
5818.27, 5818.28, 5818.29, 5818.30, 5818.31, 5818.32, and 23
5818.33 of the Revised Code be enacted to read as follows: 24
Sec. 1336.04. (A) A Subject to division (C) of this 25
section, a transfer made or an obligation incurred by a debtor 26
is fraudulent as to a creditor, whether the claim of the 27
creditor arose before, or within a reasonable time not to exceed 28
four years after, the transfer was made or the obligation was 29
incurred, if the debtor made the transfer or incurred the 30
obligation in either of the following ways: 31
(1) With actual intent to hinder, delay, or defraud any 32
creditor of the debtor; 33
(2) Without receiving a reasonably equivalent value in 34
exchange for the transfer or obligation, and if either of the 35
following applies: 36
(a) The debtor was engaged or was about to engage in a 37
business or a transaction for which the remaining assets of the 38
debtor were unreasonably small in relation to the business or 39
transaction; 40
(b) The debtor intended to incur, or believed or 41
reasonably should have believed that the debtor would incur, 42
debts beyond the debtor's ability to pay as they became due. 43
(B) In determining actual intent under division (A)(1) of 44
this section, consideration may be given to all relevant 45
factors, including, but not limited to, the following: 46
(1) Whether the transfer or obligation was to an insider; 47
(2) Whether the debtor retained possession or control of 48
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As Introduced
the property transferred after the transfer; 49
(3) Whether the transfer or obligation was disclosed or 50
concealed; 51
(4) Whether before the transfer was made or the obligation 52
was incurred, the debtor had been sued or threatened with suit; 53
(5) Whether the transfer was of substantially all of the 54
assets of the debtor; 55
(6) Whether the debtor absconded; 56
(7) Whether the debtor removed or concealed assets; 57
(8) Whether the value of the consideration received by the 58
debtor was reasonably equivalent to the value of the asset 59
transferred or the amount of the obligation incurred; 60
(9) Whether the debtor was insolvent or became insolvent 61
shortly after the transfer was made or the obligation was 62
incurred; 63
(10) Whether the transfer occurred shortly before or 64
shortly after a substantial debt was incurred; 65
(11) Whether the debtor transferred the essential assets 66
of the business to a lienholder who transferred the assets to an 67
insider of the debtor. 68
(C) No transfer made or obligation incurred by a debtor 69
due to or as a result of the debtor's death is actionable under 70
division (A)(2) of this section. 71
Sec. 1336.05. (A) A Subject to division (C) of this 72
section, a transfer made or an obligation incurred by a debtor 73
is fraudulent as to a creditor whose claim arose before the 74
transfer was made or the obligation was incurred if the debtor 75
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As Introduced
made the transfer or incurred the obligation without receiving a 76
reasonably equivalent value in exchange for the transfer or 77
obligation and the debtor was insolvent at that time or the 78
debtor became insolvent as a result of the transfer or 79
obligation. 80
(B) A Subject to division (C) of this section, a transfer 81
made or an obligation incurred by a debtor is fraudulent as to a 82
creditor whose claim arose before the transfer was made or the 83
obligation was incurred if the transfer was made to or the 84
obligation was incurred with respect to an insider for an 85
antecedent debt, the debtor was insolvent at that time, and the 86
insider had reasonable cause to believe that the debtor was 87
insolvent. 88
(C) No transfer made or obligation incurred by a debtor 89
due to or as a result of the debtor's death is actionable under 90
this section. 91
Sec. 1336.09. A (A) Subject to division (B) of this 92
section, a claim for relief with respect to a transfer or an 93
obligation that is fraudulent under section 1336.04 or 1336.05 94
of the Revised Code is extinguished unless an action is brought 95
in accordance with one of the following: 96
(A)(1) If the transfer or obligation is fraudulent under 97
division (A)(1) of section 1336.04 of the Revised Code, within 98
four years after the transfer was made or the obligation was 99
incurred or, if later, within one year after the transfer or 100
obligation was or reasonably could have been discovered by the 101
claimant; 102
(B)(2) If the transfer or obligation is fraudulent under 103
division (A)(2) of section 1336.04 or division (A) of section 104
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As Introduced
1336.05 of the Revised Code, within four years after the 105
transfer was made or the obligation was incurred; 106
(C)(3) If the transfer or obligation is fraudulent under 107
division (B) of section 1336.05 of the Revised Code, within one 108
year after the transfer was made or the obligation was incurred. 109
(B) Notwithstanding division (A) of this section, any 110
claim for relief based on a transfer made or obligation incurred 111
by a debtor due to or as a result of the debtor's death is 112
extinguished unless an action is brought within six months after 113
the debtor's death. 114
Sec. 1337.34. (A) Notwithstanding provisions in the power 115
of attorney, an agent that has accepted appointment shall do all 116
of the followingact in accordance with all of the following 117
mandatory duties, none of which can be waived: 118
(1) Act in accordance with the principal's reasonable 119
expectations to the extent actually known by the agent and, 120
otherwise, in the principal's best interest; 121
(2) Act in good faith; 122
(3) Act only within the scope of authority granted in the 123
power of attorney; 124
(4) Attempt to preserve the principal's estate plan to the 125
extent actually known by the agent if preserving the plan is 126
consistent with the principal's best interest based on all 127
relevant factors, including all of the following: 128
(a) The value and nature of the principal's property; 129
(b) The principal's foreseeable obligations and need for 130
maintenance; 131
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(c) Minimization of taxes, including income, estate, 132
inheritance, generation-skipping transfer, and gift taxes; 133
(d) Eligibility for a benefit, a program, or assistance 134
under a statute or regulation. 135
(B) Except as otherwise provided in the power of attorney, 136
an agent that has accepted appointment shall do all of the 137
following: 138
(1) Act loyally for the principal's benefit; 139
(2) Act so as not to create a conflict of interest that 140
impairs the agent's ability to act impartially in the 141
principal's best interest; 142
(3) Act with the care, competence, and diligence 143
ordinarily exercised by agents in similar circumstances; 144
(4) Keep a record of all receipts, disbursements, and 145
transactions made on behalf of the principal; 146
(5) Cooperate with a person that has authority to make 147
health-care decisions for the principal to carry out the 148
principal's reasonable expectations to the extent actually known 149
by the agent and, otherwise, act in the principal's best 150
interest. 151
(C) An agent that acts in good faith is not liable to any 152
beneficiary of the principal's estate plan for failure to 153
preserve the plan. 154
(D) An agent that acts with care, competence, and 155
diligence for the best interest of the principal is not liable 156
solely because the agent also benefits from the act or has an 157
individual or conflicting interest in relation to the property 158
or affairs of the principal. 159
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(E) If an agent is selected by the principal because of 160
special skills or expertise possessed by the agent or in 161
reliance on the agent's representation that the agent has 162
special skills or expertise, the special skills or expertise 163
must be considered in determining whether the agent has acted 164
with care, competence, and diligence under the circumstances. 165
(F) Absent a breach of duty to the principal, an agent is 166
not liable if the value of the principal's property declines. 167
(G) An agent that exercises authority to delegate to 168
another person the authority granted by the principal or that 169
engages another person on behalf of the principal is not liable 170
for an act, error of judgment, or default of that person if the 171
agent exercises care, competence, and diligence in selecting and 172
monitoring the person. 173
(H) Except as otherwise provided in the power of attorney, 174
an agent is not required to disclose receipts, disbursements, or 175
transactions conducted on behalf of the principal unless ordered 176
by a court or requested by the principal, a guardian, a 177
conservator, another fiduciary acting for the principal, a 178
governmental agency having authority to protect the welfare of 179
the principal, or, upon the death of the principal, by the 180
personal representative or successor in interest of the 181
principal's estate. If so requested, within thirty days the 182
agent shall comply with the request or provide a writing or 183
other record substantiating why additional time is needed and 184
shall comply with the request within an additional thirty days. 185
Sec. 1337.36. (A) Any of the following persons may 186
petition a court to construe a power of attorney or review the 187
agent's conduct and grant appropriate relief: 188
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(1) The principal or the agent; 189
(2) A guardian, conservator, or other fiduciary acting for 190
the principal, including an executor or administrator of the 191
estate of a deceased principal; 192
(3) A person authorized to make health-care decisions for 193
the principal; 194
(4) The principal's spouse, parent, or descendant; 195
(5) An individual who would qualify as a presumptive heir 196
of the principal; 197
(6) A person named as a beneficiary to receive any 198
property, benefit, or contractual right on the principal's death 199
or as a beneficiary of a trust created by or for the principal 200
that has a financial interest in the principal's estate; 201
(7) A governmental agency having regulatory authority to 202
protect the welfare of the principal; 203
(8) The principal's caregiver or another person that 204
demonstrates sufficient interest in the principal's welfare; 205
(9) A person asked to accept the power of attorney. 206
(B) Upon motion by the principal, the court shall dismiss 207
a petition filed under this section, unless the court finds that 208
the principal lacks capacity to revoke the agent's authority or 209
the power of attorney. 210
(C) In a judicial proceeding under this chapter involving 211
the administration of a power of attorney, including actions 212
under this section, the court, as justice may require, may award 213
costs and expenses, including reasonable attorney's fees, to any 214
party, to be paid by another party. 215
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As Introduced
Sec. 1337.42. (A) An agent under a power of attorney may 216
do any of the following on behalf of the principal or with the 217
principal's property only if the power of attorney expressly 218
grants the agent the authority and if exercise of the authority 219
is not otherwise prohibited by another agreement or instrume