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2009 WISCONSIN ACT 319
An Act to repeal 243.07 and 243.10; to amend 46.90 (1) (eg) 3., 50.06 (5) (b), 54.01 (9), 54.01 (17) (a) 4., 54.01 (17) (b) 4., 54.10 (3) (c) 3., 54.40 (4) (d) 1., 54.46 (3) (a) 4., 54.63 (1) (b) 4., 55.075 (4) (a) 4., 155.70 (4) (a), 180.0722 (2) (a), 221.0519 (2) and 854.08 (5) (a); and to create chapter 244 of the statutes; relating to: uniform power of attorney for finances and property.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
319,1 Section 1. 46.90 (1) (eg) 3. of the statutes is amended to read:
46.90 (1) (eg) 3. An agent under a power of attorney under ch. 243 244.
319,2 Section 2. 50.06 (5) (b) of the statutes is amended to read:
50.06 (5) (b) An individual who consents to an admission under this section may not authorize expenditures related to health care if the incapacitated individual has an agent under a durable power of attorney, as defined in s. 243.07 (1) (a) 244.02 (3), who may authorize expenditures related to health care.
319,3 Section 3. 54.01 (9) of the statutes is amended to read:
54.01 (9) "Durable power of attorney" has the meaning given in s. 243.07 (1) (a) 244.02 (3).
319,4 Section 4. 54.01 (17) (a) 4. of the statutes is amended to read:
54.01 (17) (a) 4. Any individual who is nominated as guardian, any individual who is appointed to act as guardian or fiduciary for the proposed ward by a court of any state, any trustee for a trust established by or for the proposed ward, any person appointed as agent under a power of attorney for health care, as defined in s. 155.01 (4), or any person appointed as agent under a durable power of attorney under ch. 243 244.
319,5 Section 5. 54.01 (17) (b) 4. of the statutes is amended to read:
54.01 (17) (b) 4. Any person appointed as agent under a durable power of attorney under ch. 243 244, unless the agency is revoked or terminated by a court.
319,6 Section 6. 54.10 (3) (c) 3. of the statutes is amended to read:
54.10 (3) (c) 3. Whether the proposed ward has engaged in any advance planning for financial and health care decision making that would avoid guardianship, including by executing a durable power of attorney under ch. 243 244, a power of attorney for health care, as defined in s. 155.01 (10), a trust, or a jointly held account.
319,7 Section 7. 54.40 (4) (d) 1. of the statutes is amended to read:
54.40 (4) (d) 1. Review any power of attorney for health care under ch. 155, any durable power of attorney under ch. 243 244 executed by the proposed ward, and any other advance planning for financial and health care decision making in which the proposed ward had engaged.
319,8 Section 8. 54.46 (3) (a) 4. of the statutes is amended to read:
54.46 (3) (a) 4. Whether the ward had executed a durable power of attorney under s. 243.07 ch. 244 or a power of attorney for health care under s. 155.05 or had engaged in other advance planning for financial and health care decision making.
319,9 Section 9. 54.63 (1) (b) 4. of the statutes is amended to read:
54.63 (1) (b) 4. The agent under the ward's power of attorney for health care under ch. 155, if any, and the agent under the ward's durable power of attorney under ch. 243 244, if any.
319,10 Section 10. 55.075 (4) (a) 4. of the statutes is amended to read:
55.075 (4) (a) 4. Whether the individual sought to be protectively placed or protectively served had executed a durable power of attorney for finances and property under s. 243.07 ch. 244 or a power of attorney for health care under s. 155.05 or had provided advance consent to nursing home admission or engaged in other advance planning to avoid protective placement or protective services.
319,11 Section 11. 155.70 (4) (a) of the statutes is amended to read:
155.70 (4) (a) Nothing in this chapter may be construed to render invalid a durable power of attorney that is executed under s. 243.07, 2007 stats., prior to April 28, 1990.
319,12 Section 12. 180.0722 (2) (a) of the statutes is amended to read:
180.0722 (2) (a) A shareholder entitled to vote at a meeting of shareholders, or to express consent or dissent in writing to any corporate action without a meeting of shareholders, may authorize another person to act for the shareholder by appointing the person as proxy. An appointment of a proxy may be in durable form as provided in s. 243.07 ch. 244.
319,13 Section 13. 221.0519 (2) of the statutes is amended to read:
221.0519 (2) Method of appointing a proxy. A shareholder may appoint a proxy to vote or otherwise act for the shareholder by signing an appointment form, either personally or by his or her attorney-in-fact. An appointment of a proxy may be in durable form as provided in s. 243.07 244.04.
319,14 Section 14. 243.07 of the statutes is repealed.
319,15 Section 15. 243.10 of the statutes, as affected by 2009 Wisconsin Act 28, is repealed.
319,16 Section 16. Chapter 244 of the statutes is created to read:
Chapter 244
Uniform power of attorney
For finances and property
Subchapter I
General provisions
244.01 Short title. This chapter may be cited as the Uniform Power of Attorney for Finances and Property Act.
244.02 Definitions. In this chapter:
(1) "Agent" means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney-in-fact, or otherwise.
(2) "Domestic partner" has the meaning given in s. 770.01 (1).
(3) "Durable power of attorney" means a power of attorney that is not terminated by the principal's incapacity.
(4) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(5) "Genuine" means free of forgery or counterfeiting.
(6) "Good faith" means honesty in fact.
(7) "Incapacity" means inability of an individual to manage property, finances, or business affairs because the individual meets one of the following criteria:
(a) Has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance.
(b) Is missing.
(c) Is detained, including incarceration in a correctional facility.
(d) Is outside the United States and unable to return.
(8) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(9) "Power of attorney" means a writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term power of attorney is used.
(10) "Presently exercisable general power of appointment," with respect to property or a property interest subject to a power of appointment, means power exercisable at the time in question to vest absolute ownership in the principal individually, the principal's estate, the principal's creditors, or the creditors of the principal's estate. The term does not include a power exercisable in a fiduciary capacity or only by will. The term includes a power of appointment that is exercisable only when one of the following circumstances exists:
(a) The occurrence of a specified event.
(b) The satisfaction of an ascertainable standard.
(c) The passage of a specified period only after the occurrence of the specified event, the satisfaction of the ascertainable standard, or the passage of the specified period.
(11) "Principal" means an individual who grants authority to an agent in a power of attorney.
(12) "Property" means anything that may be the subject of ownership, including real or personal property, or any interest or right in that property.
(13) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(14) "Sign" means, with present intent to authenticate or adopt a record, any of the following:
(a) To execute or adopt a tangible symbol.
(b) To attach to or logically associate with the record an electronic sound, symbol, or process.
(15) "Stocks and bonds" means stocks, bonds, mutual funds, and all other types of securities and financial instruments, whether held directly, indirectly, or in any other manner. The term does not include commodity futures contracts and call or put options on stocks or stock indexes.
244.03 Applicability. This chapter applies to all powers of attorney except for the following:
(1) A power to the extent it is coupled with an interest in the subject of the power, including a power given to or for the benefit of a creditor in connection with a credit transaction.
(2) A power to make health-care decisions.
(3) A proxy or other delegation to exercise voting rights or management rights with respect to an entity.
(4) A power created on a form prescribed by a government or governmental subdivision, agency, or instrumentality for a governmental purpose.
244.04 Power of attorney is durable. A power of attorney created under this chapter is durable unless it expressly provides that it is terminated by the incapacity of the principal.
244.05 Execution of power of attorney. To execute a power of attorney the principal must sign the power of attorney or another individual, in the principal's conscious presence and directed by the principal, must sign the principal's name on the power of attorney. A signature of the principal on a power of attorney is presumed to be genuine if the principal makes an acknowledgment of the power of attorney before a notarial officer authorized under s. 706.07 to take acknowledgments.
244.06 Validity of power of attorney. (1) A power of attorney executed in this state on or after the effective date of this subsection .... [LRB inserts date], is valid if its execution complies with s. 244.05.
(2) A power of attorney executed in this state before the effective date of this subsection .... [LRB inserts date], is valid if its execution complied with the law of this state as it existed at the time of execution.
(3) A power of attorney executed outside this state is valid in this state if, when the power of attorney was executed, the execution complied with one of the following:
(a) The law of the jurisdiction that determines the meaning and effect of the power of attorney, as provided under s. 244.07.
(b) The requirements for a military power of attorney under 10 USC 1044b.
(4) A photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original.
244.07 Meaning and effect of power of attorney. (1) The meaning and effect of a power of attorney is determined by the law of the jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction in the power of attorney, by the law of the jurisdiction in which the power of attorney was executed.
(2) Unless specifically stated, a power of attorney does not authorize gifting, self-dealing, or oral amendment of the power of attorney, and any such specific authority shall be strictly construed.
244.08 Nomination of guardian; relation of agent to court-appointed fiduciary. (1) In a power of attorney, a principal may nominate a guardian of the principal's estate or guardian of the principal's person for consideration by the court if protective proceedings for the principal's estate or person are begun after the principal executes the power of attorney.
(2) If, after a principal executes a power of attorney, a court appoints a conservator or guardian of the principal's estate or other fiduciary charged with the management of some or all of the principal's property, the agent is accountable to the fiduciary as well as to the principal. The power of attorney is not terminated and the agent's authority continues unless limited, suspended, or terminated by the court.
244.09 When a power of attorney is effective. (1) A power of attorney is effective when executed unless the principal provides in the power of attorney that it becomes effective at a future date or upon the occurrence of a future event or contingency.
(2) If a power of attorney becomes effective upon the occurrence of a future event or contingency, the principal, in the power of attorney, may authorize one or more persons to determine that the event or contingency has occurred.
(3) If a power of attorney becomes effective upon the principal's incapacity and the principal has not authorized a person to determine whether the principal is incapacitated, or the person so authorized is unable or unwilling to make the determination, the power of attorney becomes effective upon a determination in a writing or other record by one of the following:
(a) A physician licensed under ch. 448 or a psychologist licensed under ch. 455 that the principal is incapacitated within the meaning of s. 244.02 (7) (a).
(b) An attorney at law, a judge, or an appropriate governmental official that the principal is incapacitated within the meaning of s. 244.02 (7) (b), (c), or (d).
(c) A person authorized by the principal in the power of attorney to determine that the principal is incapacitated may act as the principal's personal representative under 42 USC 1320d, the Health Insurance Portability and Accountability Act, and applicable regulations, to obtain access to the principal's health-care information and communicate with the principal's health care provider.
244.10 Termination of power of attorney or agent's authority. (1) A power of attorney terminates when any of the following occurs:
(a) The principal dies.
(b) The principal becomes incapacitated, if the power of attorney so provides.
(c) The principal revokes the power of attorney.
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