Even When Power of Attorney Is Not Used, The Existence of One is Relevant To Determination of Whether Confidential Relationship Exists

Bayes v. Dornon, 2d District Case No. 2014-CA-129, 2015-Ohio-3053. The appellate court determined, pursuant to R.C. § 2109.50, that a concealment claim could be filed after the decedent's death to adjudicate the issue of whether a gift made before death was valid. Furthermore, the appellate court held that the existence of a power of attorney, whether or not it is used, is relevant as to determining whether a confidential relationship exists to support an undue influence claim. Other factors, such as whether the defendant is the decedent's caregiver, also should be considered. While evidence of lack of capacity is useful in determining whether undue influence was exercised, the appellate court stated that claims for undue influence do not depend upon a determination that the decedent lacked capacity.