A durable power of attorney as defined under and containing the language required in a uniform durable power of attorney act enacted by a jurisdiction other than the state of Wisconsin, provided the power of attorney meets the requirements of and does not conflict with s. 244.02 (3)
A person's common law authorization, whether durable or non-durable, to act as the person's agent under a power of attorney.
A power of attorney document signed before September 1, 2010, is presumed to be non-durable unless the power of attorney document specifies that it is durable.
A power of attorney document signed on or after September 1, 2010, is presumed to be durable unless the power of attorney document specifies that it is non-durable.
The department or the Wisconsin deferred compensation program administrator, as applicable, shall accept the agent's signature in lieu of the principal's signature for all transactions for which the department or the Wisconsin deferred compensation program administrator requires the principal's signature, provided that all of the following conditions are met:
The department or the Wisconsin deferred compensation program administrator, as applicable, received either the original of the power of attorney which is dated and signed by the person granting the power of attorney, or a legible facsimile copy or e-mail attachment, subject to s. ETF 10.82
. The department or the Wisconsin deferred compensation program administrator, as applicable, may require additional documentation deemed necessary to verify that the power of attorney remains in effect.
The appointment under power of attorney has not terminated or expired.
The powers delegated under the power of attorney include authority to make the transaction authorized by the agent.
If requested by the department or the Wisconsin deferred compensation program administrator, the agent certifies that he or she does not have knowledge of the termination of the appointment, the principal's death, or if applicable, the principal's incapacitation. If the department or the Wisconsin deferred compensation program administrator requests such certification, and the agent does not provide the certification as requested, the department or the Wisconsin deferred compensation program administrator may decline to act upon the request.
If the power of attorney is conditioned on the incapacitation of the principal, upon request of the department or the Wisconsin deferred compensation program administrator the agent provides evidence satisfactory to the department or the Wisconsin deferred compensation program administrator that the principal has become incapacitated.
Subject to par. (c)
, the department and the Wisconsin deferred compensation program administrator, as applicable, shall treat as valid any beneficiary designation received prior to the principal's death that is signed by the agent, without regard to the date on which the power of attorney was executed by the principal or the date on which the department or the Wisconsin deferred compensation program administrator receives the beneficiary designation form, provided that the agent signed the beneficiary designation on or after the date on which the principal executed the power of attorney granting that authority to the agent.
The department or the Wisconsin deferred compensation program administrator, as applicable, shall review acknowledged power of attorney documents for technical completeness, and will reject any that are technically deficient within 10 days after receipt by the department.
The department and the Wisconsin deferred compensation program administrator, as applicable, shall not honor transaction requests by the agent for which the power of attorney document does not grant authority to the agent, regardless of whether the agent's request is rejected within 10 days after the department received the agent's request.
The effective dates of certain transactions are based on the receipt date of either the transaction request or certain documents, such as a benefit application. If the department receives such a transaction request from the agent, but either has not received the power of attorney or the department requests certification under sub. (2) (d)
, the department must receive the requested certification or the power of attorney within 30 days after the department's notification to the agent that the power of attorney or certification is required. If the department receives the certification or power of attorney within 30 days, the effective date of the transaction requested will be based on the original date on which the department received the transaction request.
(d) Paragraph (c)
shall not apply if the principal executed the power of attorney after the date on which the department received the transaction request.
A document signed by the agent prior to the date on which the power of attorney becomes effective shall have no force or effect.
If the principal has granted joint power of attorney to co-agents, the department or the Wisconsin deferred compensation program administrator, as applicable, shall require the signature of each agent on any transaction that requires the principal's signature.
If the principal has granted separate power of attorney to more than one agent, each with independent authority, the department and the Wisconsin deferred compensation program administrator, as applicable, shall honor transaction requests signed by any single agent, subject to sub. (2) (c)
If agents under par. (b)
request to execute conflicting transactions, the department or the Wisconsin deferred compensation program administrator, as applicable, may decline to act upon the requests of one or more of the agents if it is determined to be in the best interests of the principal.
The department or the Wisconsin deferred compensation program administrator, as applicable, may decline to act upon the request of an agent acting under an alleged power of attorney if there is reason to believe that the purported agent is not the appointed person, the appointment is not in effect, the authority of the power of attorney does not extend to the particular transaction, or the power of attorney is otherwise defective.
Unless otherwise specified in the power of attorney, if the agent is the principal's spouse or domestic partner as defined in s. 770.01 (1)
, Stats., the power of attorney terminates if an action is filed for the dissolution of the agent's marriage to the principal or the domestic partnership of the principal and agent is terminated.
Unless otherwise specified in the power of attorney, if the agent is the principal's domestic partner as defined in s. 40.02 (21c)
, Stats., the power of attorney does not automatically terminate if only the domestic partnership as defined in s. 40.02 (21d)
, Stats., terminates.
ETF 10.75 History
Cr. Register, September, 1986, No. 369
, eff. 10-1-86; r. and recr. Register, December, 1996, No. 492
, eff. 1-1-97; CR 04-104
: am. (2) (a) Register July 2005 No. 595
, eff. 8-1-05; CR 10-138
: r. and recr. Register August 2011 No. 668
, eff. 9-1-11.
ETF 10.78 Guardianship requirements. ETF 10.78(1)
When the amount of a single sum benefit payment to a minor, as defined under s. 54.01 (20)
, Stats., or incompetent, as described in s. 54.10 (3)
, Stats., exceeds $5,000, or when an annuity or disability annuity is payable, payment shall be made by the department to the court appointed guardian, for the benefit of the minor or incompetent, upon receipt of a certified copy of the letters of appointment. Letters of appointment shall be certified within the past 6 months. If the minor is married and has not been adjudged to be incompetent, the department shall make the payment to the minor.
If a guardianship is identified prior to payment, payment shall be made to the guardian, for the benefit of the minor or incompetent, upon receipt of a certified copy of the letters of appointment.
If there is a guardian of the estate and another guardian of the person, payment shall be made to the guardian of the estate.
ETF 10.78 History
Cr. Register, September, 1986, No. 369
, eff. 10-1-86; corrections in (1) made under s. 13.93 (2m) (b) 7., Stats., Register September 2006 No. 609
: emerg. r. (2), eff. 1-1-10; CR 10-004
: r. (2) Register July 2010 No. 655
, eff. 8-1-10; correction in (3) made under s. 13.92 (4) (b) 7., Stats., Register July 2010 No. 655
; CR 11-040
: am. (1), renum. (3), (4) to be (2), (3) Register July 2012 No. 679
, eff. 8-1-12.
ETF 10.79 Reasonable efforts to locate benefit payees. ETF 10.79(1)(1)
The department shall make reasonable efforts to maintain current addresses on file for participants, other than for participating employees under s. 40.02 (46)
, Stats., alternate payees, beneficiaries or other potential benefit recipients. These efforts shall include, but shall not be limited to, the following:
Require participating employers to report a current address for all terminating participants.
Request social security numbers and addresses for all named beneficiaries on the departmental beneficiary designation form.
Initiate a minimum of one written contact per year to alternate payees and participants, other than participating employees and annuitants, which may be accomplished by sending those persons an annual statement of account or benefit statement.
Publish an article annually in the departmental participant newsletter communicating the importance of notifying the department of address changes.
Before considering a benefit abandoned under s. 40.08 (8)
, Stats., the department shall make reasonable efforts to locate participants, alternate payees and beneficiaries except those persons whose accounts meet the conditions specified in s. 40.08 (8) (f)
, Stats. Reasonable efforts to locate potential benefit payees may include, but are not limited to:
Seek current address information for potential benefit payees through locator services available from the social security administration, internal revenue service or other federal or state agencies.
Seek current address information for potential benefit payees through private company data bases or locator services.
Publish the names of potential benefit payees in the official state newspaper with instructions for contacting the department for application information. This paragraph shall not apply to accounts that meet the conditions specified in s. 40.08 (8) (f)
ETF 10.79 History
Cr. Register, June, 1998, No. 510
, eff. 7-1-98.
ETF 10.82 Receipt by the department. ETF 10.82(1)
Date of receipt or filing; nonbusiness hours and holidays excluded. ETF 10.82(1)(a)(a)
Except as otherwise specifically provided in par. (am)
for a facsimile or electronic mail, the date a document is received by, or filed with, the department is the date the original document is physically received at the department at its offices during regular business hours as provided under s. 230.35 (4) (f)
, Stats., regardless of the date the document was mailed or otherwise intended to be transmitted to the department and regardless of any mishandling or misdirection by the U.S. postal service or any other agency or person. A document which arrives at the department's offices after 4:30 p.m. Monday through Friday or on a Saturday, Sunday or holiday as defined by s. 230.35 (4) (a)
, Stats., is deemed received by the department at 7:45 a.m. on the next day on which the department's offices are regularly open for business as provided under s. 230.35 (4) (f)
Unless otherwise provided in sub. (2)
, a fax or e-mail to which sub. (2)
applies is received by the department, regardless of whether any individual is aware of its receipt, when it enters the information processing system designated or used by the department for the purpose of receiving facsimiles or electronic mail, respectively, provided the following are true:
The fax or e-mail transmission is in a form capable of being processed by department's information processing system.
The department is able to retrieve the fax or e-mail from the information processing system.
No department employee may affix a date stamp to a document received by the department which indicates a date received in conflict with par. (a)
ETF 10.82 Note
Note: This paragraph does not prohibit a department employee from making a note attached to or on the document, separate from the official receipt stamp, concerning the circumstances under which the document arrived at the department, including dates or times.
A document bearing the department's date stamp indicating receipt is conclusively presumed for all purposes associated with benefits under ch. 40, Stats.
, to have been received by the department on the date indicated by the stamp. This presumption may be rebutted only by clear and convincing evidence that the document was received by or filed with the department, as provided in par. (a)
, on a different date than shown by the official date stamp. The department may correct a date stamp the secretary determines was affixed in violation of par. (b)
(2) Receipt of electronic correspondence; facsimiles and electronic mail. ETF 10.82(2)(a)(a)
Electronic correspondence may be accepted.
The department may accept correspondence transmitted to the department by fax or by e-mail, including letters, messages, and documents associated with payment or administration of, or eligibility for, benefits under ch. 40, Stats.
, and including authorizations to disclose confidential personal information, applications for benefits, beneficiary designations and elections to participate or terminate participation in the variable retirement investment trust.
ETF 10.82 Note
Note 1: The purpose of this subsection is to allow persons corresponding with the department to utilize the speed, convenience and other legitimate advantages of electronic communications in transactions with the department. It is the purpose of this subsection to permit persons with access to fax or e-mail to carry out transactions only to the same extent and with the same results as for transactions by non-electronic means, except for the expanded time of receipt provided by sub. (1) (am).
ETF 10.82 Note
Note 2: It is recognized that under this subsection and because of the inherent nature of electronic communications that the department may at times accept and act upon fax or e-mail correspondence without ever receiving a holographic document or signature. The department may reasonably rely on representations made in correspondence to the department in any form. The department is not required to use different or extraordinary care before accepting or acting upon correspondence received by fax or e-mail.
ETF 10.82 Note
Note 3: Under s. 943.395 (1) (c)
, Stats., it is prohibited to present or cause to be presented a false or fraudulent claim or benefit application, or any false or fraudulent proof in support of such a claim or benefit application, or false or fraudulent information which would affect a future claim or benefit application, to be paid under any employee benefit program created by ch. 40
, Stats. Criminal penalties are provided for violation of this prohibition.
The department may, at its sole discretion and in whole or in part, treat as never received or formally reject any fax or e-mail unless the department is satisfied that the transmission is complete, duly authorized by the proper person, authentic and is not likely to result in any payment of benefits through fraud, misrepresentation or error. To the extent that the correspondence consists of a purported copy of a document, the department may reject a fax or e-mail or treat it as never received unless satisfied that the transmission is an accurate copy.
Examples of circumstances under which a transmission may be rejected or treated as if never received include the following:
The transmission was not received on a fax machine or e-mail server, for fax and e-mail correspondence respectively, used by the department.
There is no separate fax cover sheet or similar information accompanying the transmission which provides the sender's name, mailing address, and telephone number, as well as the fax number or e-mail address from which the transmission was sent.
The department is unable to determine to its satisfaction the identity of the sender from the information transmitted.
The department is unable to determine from the transmitted information to whom or to what transaction the transmission pertains.
ETF 10.82 Note
Note: Records in the department pertaining to participants, alternate payees and insured persons are filed by Social Security Number, member identification number and name. Records pertaining to beneficiaries of deceased participants are filed with the deceased participant's records, identified by the decedent's name, Social Security Number and member identification number, as well as the name and Social Security Number of the beneficiary.
A reasonable doubt exists that a fax or e-mail or e-mail attachment is a true copy of the document of which it purports to represent, as determined by the department.
The authenticity of an underlying document is not established to the satisfaction of the department.
With respect to a benefit application form, waiver of benefits, beneficiary designation, election concerning the variable retirement investment trust or other document affecting entitlement to or payment of benefits, it is not established to the satisfaction of the department that the sender of the transmission was the living person whose benefits are affected, a person duly authorized to act on that person's behalf, such as a guardian of the estate or attorney-in-fact, or the trustee of a trust or personal representative of an estate entitled to receive death benefits.
The document is received after the deadline for receipt by, or filing with, the department.
ETF 10.82 Note
Example: Annuity applications or beneficiary designations received after the death of the participant are never accepted.
(c) Department may request additional information.
Before agreeing to acknowledge, accept, file, formally receive or act upon correspondence transmitted by fax or e-mail, the department may request additional information, including but not limited to the original document or other supporting representations and documentation, as necessary to establish to the department's satisfaction that the transmitted correspondence is authentic, offered by the proper person and, if the correspondence includes or consists of a copy of a document, that the transmission is a true and authentic copy.
(d) No presumptions as to receipt.
Any attempt to file documents with the department by facsimile or electronic mail is entirely at the risk of the person transmitting the facsimile or electronic mail to the department. Transmission does not create a presumption of actual receipt by the department. Dates and times inserted into a fax or e-mail by a sending machine do not establish when, or if, correspondence was received by the department. Mere acknowledgement that a transmission was received does not establish that the transmission was complete, was accepted or that the content sent corresponds to the content received.
ETF 10.82 Note
Note: Silence by the department does not indicate receipt or acceptance. If verification of receipt is important to the sender, the sender should seek and obtain verification from the department division, bureau or staff actually responsible for processing the transaction in question.
(e) Agents and third-party administrators not affected.
This subsection does not require a third party administrator or agent under contract to any board to administer a benefit program supervised by that board to accept correspondence or documents by fax or e-mail. Neither does this rule prohibit such an agent or third party administrator from doing so, provided security, privacy, authenticity and accuracy concerns are adequately addressed.
The department may not accept or rely on electronic copies of certain documents, as follows:
The text includes words to the effect that a copy may not be relied upon to the same extent as the original.
The document is a record, or is offered to the department as necessary evidence, of adoption, divorce, other matters of family law, the execution of a will or the creation of a testamentary trust.
The document is, or is offered to the department as necessary evidence of, a notice provided by a court, a court order or an official court document including a brief, pleading or other writing required to be executed in connection with court proceedings.
Notwithstanding subd. 1.
, if time is of the essence, the department may nevertheless accept and rely upon a fax or e-mail of a court order to the department, or a fax or e-mail of a certified copy of such order, when the transmission originates directly from the court or the department is otherwise satisfied that the faxed or e-mailed court order is authentic, provided the order is one of the following:
An order to the department as a party to the underlying action or an order to the department to take other action which the department is permitted to do.
ETF 10.82 Note
Note: The department generally requires a copy of the court order directed at the department bearing an original certification of authenticity from the court, or an original court order.
This subsection does not apply to documents transmitted in connection with any program under the administrative oversight of the private employer health care coverage board.
(g) Requirement to be in writing.
If a provision of ch. 40, Stats.
or a rule adopted under ch. 40, Stats.
, requires a document offered to the department to be in writing, then the department may deem an e-mail or fax to satisfy that requirement.