by Dan McCarthy | Mar 25, 2026 | Estate Planning, Trusts and Wills
Health Care Power of Attorney, Living Will, and DNR:
What’s the Difference — and Do You Need All Three?
One of the most common areas of confusion in estate planning isn’t about wills or trusts—it’s about what happens if you can’t speak for yourself.
Most people have heard the terms “living will,” “health care power of attorney,” and “do not resuscitate order.” Many assume they’re different names for the same thing. They’re not. Each serves a distinct purpose under Ohio law, and relying on just one can leave critical gaps that force your family—or even a court—to make decisions for you.
At McCarthy Law Office, we help Cincinnati and Westside families understand these differences and make sure the right documents are in place before they’re ever needed.
The Big Picture: What Are “Advance Directives”?
“Advance directive” is the umbrella term for legal documents that address your health care wishes when you cannot communicate. In Ohio, the three most important are:
• Health Care Power of Attorney (HCPOA) — names a person to make decisions for you
• Living Will Declaration — records your specific wishes about life-sustaining treatment
• Do Not Resuscitate (DNR) Order — a medical order instructing providers not to perform CPR
These documents are related—but not interchangeable.
1. Health Care Power of Attorney (HCPOA)
A Health Care Power of Attorney designates a trusted person—your agent—to make medical decisions on your behalf when you cannot make them yourself. It becomes effective when your attending physician determines you lack the capacity to make informed health care decisions.
This is the most flexible and broadly applicable document. It applies in virtually any situation where you cannot communicate—not just end-of-life scenarios. For example, if you are unconscious after an accident but expected to recover, your agent—not a Living Will—guides your care.
Your agent must follow your known wishes. If your wishes are not known, they must act in your best interest. This makes your choice of agent critical. You should also name at least one successor agent.
Execution Requirements in Ohio
Must be signed by you in the presence of either two qualified adult witnesses or a notary public. Witnesses cannot be your agent, your health care providers, or individuals who would inherit from you. No person related to you by blood, marriage, or adoption may serve as a witness.
2. Living Will Declaration
A Living Will is a written statement of your personal wishes about life-sustaining treatment, directed to your health care providers. Where a Health Care Power of Attorney speaks through a person, a Living Will speaks directly to your doctors.
When It Becomes Effective
A Living Will only becomes effective in two specific situations under Ohio law:
• You are in a terminal condition and cannot communicate, or
• You are in a permanently unconscious state
Both require physician confirmation. A Living Will does not apply in most everyday incapacity situations.
What a Living Will Can Address
• Whether life-sustaining treatment should be withheld or withdrawn
• Preferences regarding tube feeding
• CPR decisions in qualifying situations
• Comfort care preferences
Execution Requirements in Ohio
Must be signed in the presence of either two qualified adult witnesses or a notary public. The same witness restrictions apply as with the HCPOA.
3. Do Not Resuscitate (DNR) Order
A DNR is a medical order—not a personal directive—instructing health care providers and emergency responders not to perform CPR if your heart stops or you stop breathing.
Unlike a Health Care Power of Attorney or Living Will, you cannot create a valid DNR on your own. It must be issued by a physician, advanced practice registered nurse, or physician assistant after consultation with you or your authorized decision-maker. Ohio uses a standardized DNR form issued by the Ohio Department of Health, recognized statewide.
Ohio’s Two Types of DNR Orders
• DNR-CC (Comfort Care): No CPR at any time; care focuses on comfort
• DNR-CC-Arrest: No CPR only if cardiac or respiratory arrest occurs
A DNR should be readily accessible. Ohio commonly recommends placing it on the refrigerator so emergency responders can find it quickly. Importantly, a DNR never means “do nothing”—comfort care, including pain management, is always provided.
How Do These Documents Work Together?
Ohio law establishes a clear priority when these documents overlap:
• A valid Living Will generally takes priority over your agent’s decisions
• A DNR you personally consented to generally takes priority over your agent
• An agent may override a DNR they previously consented to if your condition has substantially changed
The practical takeaway: these documents must be consistent and coordinated. Most problems we see are not from missing documents—but from documents that don’t work together.
What Happens If You Don’t Have These Documents?
If you become incapacitated without a Health Care Power of Attorney, no one automatically has the legal authority to make decisions for you—not even your spouse or adult children. Your family may need to go to probate court to have a guardian appointed, which means:
• Filing an application with the probate court
• Obtaining a physician’s evaluation of incapacity
• Attending a court hearing
• Ongoing court supervision and reporting requirements
This process takes time, costs money, and places decision-making under court oversight. Most people focus on avoiding probate after death—but proper planning also helps you avoid a guardianship proceeding during your lifetime. A Health Care Power of Attorney is one of the simplest and most effective ways to do that.
Do You Need All Three?
You almost always need a Health Care Power of Attorney. It is the most versatile document and covers both temporary and long-term incapacity.
A Living Will is an important complement if you have strong views about end-of-life care. It provides clear direction and removes uncertainty for your family.
A DNR is appropriate in more specific circumstances—typically for individuals with serious medical conditions, advanced age, or clear preferences about resuscitation. This decision should be made in consultation with your physician.
Common Mistakes to Avoid
• Not naming a successor agent. If your primary agent cannot serve, there may be no one authorized to act.
• Not having the conversation. A document alone is not enough—your agent needs to understand your wishes.
• Conflicting documents. Inconsistent instructions create confusion at critical moments.
• Inaccessible documents. Documents locked away or unavailable in an emergency are often useless.
• Outdated documents. Laws, relationships, and circumstances change. Documents signed years ago may no longer reflect your wishes.
• Using forms that do not comply with Ohio law. Improperly executed documents may be invalid when they are needed most.
Ready to Put Your Health Care Wishes in Writing?
If you don’t have these documents in place—or aren’t sure they work together under Ohio law—we can help you put a clear, coordinated plan in place. We regularly work with individuals and families throughout Cincinnati, Bridgetown, Delhi, Green Township, Cleves, North Bend, and across Hamilton County.
Call us at 513-815-7006 or visit danmccarthylaw.com to schedule a consultation.
McCarthy Law Office
7593 Bridgetown Road, Suite A
Cincinnati, OH 45248
By appointment | Virtual meetings available
by Dan McCarthy | Jul 1, 2025 | Trusts and Wills
Probate Avoidance Planning in Ohio
Losing a loved one is hard enough without having to face a maze of legal and financial processes. Unfortunately, that’s often exactly what families must deal with after a death—especially when it comes to probate. At McCarthy Law Office, we help Cincinnati families proactively plan so they can avoid the time-consuming and often costly probate process.
What Is Probate?
Probate is the legal process of managing a person’s estate after they pass away. This process involves validating the deceased person’s Will , appointing an executor, paying off debts and taxes, and distributing remaining assets to heirs or beneficiaries.
If someone dies with a Will, the probate court must confirm its validity and ensure the executor carries out the deceased’s instructions. If someone dies without a Will—known as intestate—then Ohio’s intestacy laws will dictate how the estate is divided, still under probate court supervision.
Does Having a Will Avoid Probate?
This is a common misconception. Even if your loved one has a valid Will, it must go through probate before assets are distributed. A Will simply provides direction for probate—it does not bypass it.
Why Avoid Probate?
While not inherently negative, the probate process can be:
· Time-consuming (lasting months or longer)
· Costly (due to court fees, executor fees, and legal costs)
· Public (as probate becomes a matter of public record)
By avoiding probate, families can save time, money, and preserve privacy—all of which can ease the burden during an already emotional time.
How Much Does Probate Cost in Hamilton County?
If you’re wondering what probate might actually cost, the Hamilton County Probate Court provides helpful fee calculators on its website. These tools can give you an estimate of potential attorney fees, fiduciary fees, and court costs for various probate filings, including full estate administrations, releases from administration, guardianships, and more. The calculators offer a useful starting point when considering the financial impact of probate.
How to Avoid Probate in Ohio
Avoiding probate is a key part of smart estate planning. Below are proven strategies that can reduce or eliminate the need for probate in Ohio:
1. Establish a Trust
Creating a revocable living trust is one of the most effective probate avoidance tools. A trust is a legal entity that holds your assets, which you can still manage during your lifetime as the trustee. Upon your passing, a successor trustee will distribute the trust assets directly to your beneficiaries—without court involvement.
Trusts also offer:
· Privacy (unlike probate, trusts are not public record)
· Quicker distribution of assets
· Continuity of asset management if you become incapacitated
2. Use Joint Ownership with Right of Survivorship
When assets—such as a home or bank account—are jointly owned, ownership automatically passes to the surviving owner. This is called the right of survivorship, and it allows the transfer of property without probate. Some paperwork is still required, but court involvement is avoided.
3. Designate Beneficiaries with POD and TOD
You can name beneficiaries on many financial accounts using:
· Payable on Death (POD): Common for checking, savings, and retirement accounts.
· Transfer on Death (TOD): Available for brokerage accounts, real estate, and even vehicles.
When the account or asset owner dies, the named beneficiary automatically inherits the asset without probate.
4. Use a Transfer on Death Affidavit for Real Estate
Ohio allows you to file a Transfer on Death Affidavit with the county recorder’s office. This document ensures that your property passes to a named beneficiary without the need for probate, similar to how a TOD designation works on financial accounts.
Understanding Probate: When It’s Helpful—and When It’s Not
Probate often gets a bad reputation, but it’s not always a negative process. In fact, for some families, probate can provide structure, legal clarity, and protection—especially when there’s no prior estate planning in place. That said, it can also be time-consuming, expensive, and public, which is why many people prefer to avoid it when possible. Understanding when probate is beneficial and when it becomes a burden is key to making smart estate planning decisions. With the right tools—like trusts, beneficiary designations, and joint ownership—you can reduce or eliminate the need for probate while still protecting your loved ones and your legacy.
Ready to Plan? We’re Here to Help
At McCarthy Law Office, we understand the challenges that come with losing a loved one—and we’re here to help you plan. Probate avoidance is not just about saving time and money; it’s about protecting your family’s future and reducing unnecessary stress during difficult times.
If you’d like to discuss your estate plan or learn how to avoid probate in Ohio, contact us today to schedule a consultation.
Let’s put a plan in place—so your loved ones aren’t left navigating probate alone.
by Dan McCarthy | Jun 1, 2025 | Estate Planning, Trusts and Wills
Why DIY Estate Planning Can Cost Your Family More Than You Think
In an age where you can file your taxes online, order groceries with a tap, and even download a “free will” from your bank, it’s easy to assume that estate planning is just another task you can check off on your own. But when it comes to protecting your legacy and providing for your loved ones, the do-it-yourself approach can lead to costly mistakes and unintended consequences.
At McCarthy Law Office, we’ve seen firsthand what happens when families rely on generic estate planning tools—and the aftermath can be far more expensive and emotionally draining than investing in a proper plan from the start.
The Appeal of DIY Wills: Convenience and Cost
Local banks and online platforms now offer customers quick and often free options to create a last will and testament. It sounds like a win—no appointments, no legal fees, just a few forms and you’re done. But here’s the problem:
You get what you pay for.
Estate planning is not one-size-fits-all. A fill-in-the-blank document may provide a false sense of security, but it often fails to address the specific needs, family dynamics, or financial complexities that most people actually face. A poorly drafted estate plan may provide a false sense of security—making you believe your affairs are in order, when in fact, critical protections may be missing or invalid under state law.
What looks like a good solution today could leave your loved ones dealing with probate headaches, disputes, or financial hardship later.
What Could Go Wrong With a DIY Estate Plan?
Here are just a few common pitfalls we see:
- Improper Execution: Even a well-written will is worthless if it’s not executed correctly. State laws vary, and if your will doesn’t meet Ohio’s specific legal requirements (like how many witnesses are needed or who can serve as a witness), it could be ruled invalid.
- Outdated or Incomplete Information: DIY platforms rarely account for changes in the law or your personal circumstances. Marriage, divorce, a new child, or a home purchase should all trigger updates—but how many people remember to go back and revise their “free” will?
- Misunderstanding Legal Terminology: Legal language is complex for a reason. Misinterpreting a single word—like “per stirpes” or “intestate”—could drastically change how your assets are distributed.
- No Plan for Incapacity: A will only takes effect after death. What happens if you become incapacitated? Without a power of attorney or healthcare directive, your family may need to go to court just to manage your affairs.
The Value of Working With an Experienced Attorney
When you work with McCarthy Law Office, you’re not just filling out paperwork—you’re building a plan. We take the time to understand your goals, your family’s needs, and any concerns you might have about long-term care, taxes, or blended family dynamics.
We tailor each estate plan to your unique situation, often including:
- Wills and trusts
- Powers of attorney
- Healthcare directives
- Asset protection strategies
- Probate avoidance tools
And we ensure all documents are legally valid, up to date, and aligned with Ohio laws and your long-term wishes.
Serving Cincinnati and the Westside Community with Thoughtful Estate Planning
At McCarthy Law Office, we’re proud to serve families throughout Cincinnati and the Westside community. We believe estate planning isn’t just for the wealthy—it’s for anyone who wants to make life easier for their family during one of the most difficult times.
We help you avoid the uncertainty and risk that comes with DIY planning, and we’re here to answer your questions, explain your options, and create a plan that actually works when your family needs it most.
Conclusion
A free will from a bank or website may seem like a good deal today, but it can cost your family dearly in the long run. Don’t settle for a cookie-cutter plan that may not hold up when it counts.
Schedule a consultation with McCarthy Law Office today, and let’s talk about building an estate plan that truly protects your legacy. Because your peace of mind—and your family’s future—is worth more than free.
by Dan McCarthy | May 1, 2025 | Trusts and Wills
Dying Without a Will in Ohio: What Your Loved Ones Need to Know
Wills are more than legal documents—they are acts of love and protection. They tell the world how you want your property and assets distributed and who you trust to care for your minor children. Yet far too many people in Ohio pass away without a will in place, leaving critical decisions in the hands of the courts. If you die without a will in Ohio, your family may face legal hurdles, financial burdens, and emotional stress during an already difficult time.
Let’s take a closer look at what happens when someone in Ohio dies “intestate,” meaning without a will—and why it’s so important to plan now.
How Ohio Distributes Your Assets Without a Will
In Ohio, if you die without a will, your assets are distributed according to the state’s laws of intestate succession, outlined in Ohio Revised Code § 2105.06. These rules are rigid, and they don’t take personal relationships, promises, or intentions into account.
Here’s how it generally works:
- If you have a spouse and children from that spouse only, your spouse inherits everything.
- If you have children from a previous relationship, your spouse receives the first $20,000 plus one-third of the remaining estate. Your children split the rest.
- If you have no spouse but do have children, your children inherit the entire estate equally.
- If you have no spouse or children, your parents inherit. If they are deceased, your estate goes to siblings, then more distant relatives.
- If no living relatives are found, your assets may go to the state of Ohio.
While this system provides a legal structure, it often leads to unintended consequences. For example, a long-time partner, stepchildren, or a friend you considered family may receive nothing under Ohio’s intestate laws.
Who Will Care for Your Minor Children?
One of the most heartbreaking complications of dying without a will is the question of guardianship for your minor children. A will allows you to name the person (or people) you trust to raise your children if something happens to you. Without one, the court will make that decision based on what it deems to be in the best interest of the child.
This can lead to disagreements among relatives, uncertainty for the children, and even temporary foster care placement if no suitable guardian is immediately available. What’s more, any inheritance your children receive will be controlled by a court-appointed guardian until they turn 18, at which point they gain full control—ready or not.
The Probate Process Without a Will
Dying intestate also complicates probate, the legal process of settling your estate. Without a will to guide the process, the court will appoint an administrator—who may not be the person you would have chosen. The administrator must gather your assets, pay debts, and distribute what’s left according to state law. This often takes longer and may incur more costs than a probate process guided by a valid will.
Why Planning Ahead Matters
Creating a will gives you control. You decide:
- Who inherits your assets
- Who raises your children
- Who manages your estate
- How to minimize confusion and conflict for your family
A well-crafted estate plan also allows you to leave a legacy that reflects your values and supports your loved ones in meaningful ways.
Let McCarthy Law Office Help You Protect What Matters Most
At McCarthy Law Office, we proudly serve Cincinnati and the Westside Community with compassionate, experienced estate planning services. We understand the emotional weight behind these decisions, and we’re here to help you create a will that gives you peace of mind—and gives your loved one’s clarity and security.
Contact us today to start the conversation. Protect your family, preserve your wishes, and plan for tomorrow—today.
by Dan McCarthy | Mar 1, 2025 | Estate Planning, Trusts and Wills
Caution: Potential Unintended Consequences of Beneficiary Designations
Avoiding probate is often a goal of estate planning clients. A Revocable Living Trust is one way to avoid probate. Another strategy is the use of beneficiary designations. When planning for the future, many individuals use beneficiary designations to ensure that their assets are passed on to loved ones upon their death. Whether it’s life insurance, retirement accounts, bank accounts, or other assets, naming a beneficiary directly can seem like a simple, efficient way to manage one’s estate. In Ohio, it is even possible to place a beneficiary designation on your home with a Transfer on Death Designation Affidavit.
However, this approach can sometimes lead to unintended consequences, particularly when it conflicts with a will or trust, causing issues such as disinheritance or disputes among family members.
Conflicts with the Will or Trust
One of the primary risks of using beneficiary designations is that they can conflict with your will or trust, leading to confusion and potential legal battles. A will is often the primary document for distributing assets after death, specifying how property should be divided among heirs. A trust is also a common estate planning tool, designed to manage assets during and after your lifetime, especially for individuals with more complex estates.
If a beneficiary designation contradicts the provisions of a will or trust, the beneficiary designation typically takes precedence. For example, if your will directs that a particular asset, like a bank account or life insurance policy, be passed to a specific person, but you have listed a different beneficiary directly on the account, the beneficiary designation will override the instructions in the will.
This can lead to family conflict, especially if the named beneficiary is not who you intended, or if they were accidentally added in error. Furthermore, assets designated to a beneficiary outside of the will may bypass the probate process, which could leave certain family members feeling unfairly excluded or disinherited.
Unintended Disinheritance
Another significant risk associated with beneficiary designations is the possibility of unintended disinheritance. This often occurs when someone assumes that the beneficiary designations align with their wishes but fails to regularly update them. For instance, a married couple may designate each other as beneficiaries on life insurance policies, but if
one spouse dies, the surviving spouse might forget to update the designation or might unintentionally leave an asset to a child from a prior relationship instead of the surviving spouse.
Similarly, if you get remarried and forget to change the beneficiary on a retirement account or other asset, your former spouse could inherit your assets, leaving your current spouse and children without their expected share. The issue can be even more complicated if you have multiple children from different marriages and haven’t coordinated your beneficiary designations with the overall estate plan.
Beneficiary designations are typically not governed by the terms of a will or trust, which means assets that are designated outside of your will could pass to someone you did not intend, causing serious disputes among heirs. These errors can be costly and time-consuming to resolve, often requiring legal action to clarify your intentions.
Estate Planning Should Be Comprehensive
While beneficiary designations are a valuable tool in many situations, they should not be used in isolation when planning for the distribution of your estate. It’s essential to have a comprehensive estate plan that includes a will or trust, and to ensure that all beneficiary designations are consistent with the terms of your estate planning documents.
Updating beneficiary designations is crucial whenever there is a major life event, such as marriage, divorce, or the birth of children. Reviewing these designations regularly is a simple way to ensure that your estate plan remains up-to-date and reflects your current wishes.
Connect with McCarthy Law to Support Your Case or Situation
If you are concerned about potential unintended consequences due to beneficiary designations or conflicts with your will or trust, McCarthy Law is here to help. We focus on helping clients navigate complex estate issues and ensuring that their wishes are carried out according to their desires. We can review your current estate plan, help you make necessary updates, and ensure that your beneficiary designations are aligned with your broader plan.
Whether you are trying to resolve a conflict or create a comprehensive estate plan from the beginning, McCarthy Law is dedicated to providing the legal guidance you need. Contact us today to discuss how we can support your case or situation and help secure your legacy.
by Dan McCarthy | Feb 23, 2022 | Estate Planning, Trusts and Wills
A letter of instruction (LOI) is an important part of any comprehensive estate plan, whether you’re just starting out or have a plan already in place. A letter of instruction can help your loved ones manage important information about you. A LOI conveys your desires, includes practical information about where to find various items referenced in your plan, and it can provide advice to help those you designate in managing your affairs.
Even with a new or updated estate plan, there exists a lot of information that your heirs need to know that doesn’t necessarily fit into the format of a will, trust, or other estate plan components. In the absence of this information, it is easy for those in charge to miss important items and alternatively become overwhelmed, sifting through all of the documents you left behind. All LOI’s are as different as the persons who wrote them; however, there are some standard data that every LOI should include:
- A current list of people and their contact information to inform of your death
- A list of beneficiaries of your estate plan
- The locations of important documents like your will, trust, financial statements, insurance policies, deeds, and birth certificate
- A comprehensive list of assets such as bank accounts, investment accounts, real estate holdings, insurance policies, and military benefits if applicable
- PINs, usernames, and passwords for debit cards and online accounts
- Usernames and passwords for social media accounts, music or information accounts
- Keys and combinations to digital safes, strong boxes, and safety deposit boxes and their locations
- A list of credit card accounts and any other debts
- A list of organizations in which you belong or are a paying member such as professional organizations, boards, country or golf clubs, social or political clubs, and more
- A current list of contact information for lawyers, brokers, tax preparers, financial planners, and insurance agents
- Instructions for the distribution of personal items with sentimental value
- Instructions for a memorial or funeral service
- A personal message to family members
A note about your digital footprint: your digital world often includes music libraries, storefronts, YouTube channels, influencer social media accounts, etc. When most of us create these accounts, we blithely accepted the End User License Agreement (EULA) without much thought about when we are no longer around to manage its content and activity. A EULA designates the rights and restrictions that apply when using the software known as terms of service (TOS). Naming someone capable of managing your digital assets and their activity is important. Most of your online accounts are not subject to typical estate planning devices like trusts and wills because they are not technically your property. Since most TOS are non-transferable, you will be unable to transfer your online accounts’ ownership legally. However, you can still make a plan for how they are handled when you die.
Once you write your letter, put it somewhere easily accessible and tell your family about it. If you do not want anyone to read the LOI until your death, seal it in an envelope. You should review your letter once a year to be sure it reflects your most current wishes and information. Because your heirs read your letter of intent upon your death, it can be difficult for you to write and have any degree of satisfaction. The final words and conveyances are sobering.
We can help you compose such a letter (as well as other estate planning documents), making sure that it complements and does not contradict your estate plan. Remember that your LOI can bring real peace and be a source of comfort to your grieving family members. It allows them time to contemplate and connect with others to celebrate you rather than sort through documents searching for important papers. Your LOI can also alleviate potential family conflicts and stress because you specifically address personal items’ distribution. Your goal should be to ease the burden for those in charge and gain a sense of peace that you have done all you can to allow your loved ones to focus on reflecting on your life.
When you are ready to take the next step, we will be here to help. If you need assistance or would like to talk about your specific situation, contact our Cincinnati office at (513) 815-7006.
