LRBs0425/1
RPN:kmg&mfd:ch
1997 - 1998 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 1,
TO 1997 SENATE BILL 254
February 3, 1998 - Offered by
Committee on Judiciary, Campaign Finance Reform
and Consumer Affairs.
SB254-SSA1,1,3
1An Act to amend 243.07 (1) (a), (2), (3) (a), (4) (b) and (5);
to repeal and recreate
2243.10; and
to create 243.07 (6r) of the statutes;
relating to: powers of
3attorney.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB254-SSA1, s. 1
4Section
1
. 243.07 (1) (a), (2), (3) (a), (4) (b) and (5) of the statutes are amended
5to read:
SB254-SSA1,2,26
243.07
(1) (a) "Durable power of attorney" means a power of attorney by which
7a principal designates another as his or her agent in writing and the writing contains
8the words "this power of attorney shall not be affected by subsequent disability
, or 9incapacity
or incompetency of the principal", or "this power of attorney shall become
10effective upon the disability
, or incapacity
or incompetency of the principal", or
11similar words showing the intent of the principal that the authority conferred shall
1be exercisable notwithstanding the principal's subsequent disability
, or incapacity
2or incompetency.
SB254-SSA1,2,7
3(2) Durable power of attorney not affected by disability. All acts done by
4an agent pursuant to a durable power of attorney during any period of disability
, or 5incapacity
or incompetency of the principal have the same effect and inure to the
6benefit of and bind the principal and his or her successors in interest as if the
7principal were
competent and not disabled.
SB254-SSA1,2,15
8(3) (a) If, following execution of a durable power of attorney, a court of the
9principal's domicile appoints a conservator, guardian of the estate, or other fiduciary
10charged with the management of all of the principal's property or all of his or her
11property except specified exclusions, the agent is accountable to the fiduciary as well
12as to the principal.
The Unless the court finds that the durable power of attorney
13should remain in effect, the fiduciary has the same power to revoke or amend the
14power of attorney that the principal would have had if the principal were not
15disabled
, or incapacitated
or incompetent.
SB254-SSA1,2,21
16(4) (b) The disability
, or incapacity
or incompetency of a principal who has
17previously executed a written power of attorney that is not a durable power does not
18revoke or terminate the agency as to the agent or other person, who, without actual
19knowledge of the disability
, or incapacity
or incompetency of the principal, acts in
20good faith under the power. Any action so taken, unless otherwise invalid or
21unenforceable, binds the principal and his or her successors in interest.
SB254-SSA1,3,7
22(5) Proof of continuance of durable and other powers of attorney by
23affidavit. As to acts undertaken in good faith reliance thereon, an affidavit executed
24by the agent under a power of attorney, durable or otherwise, stating that he or she
25did not have at the time of exercise of the power actual knowledge of the termination
1of the power by revocation or of the principal's death, disability
, or incapacity
or
2incompetency is conclusive proof of the nonrevocation or nontermination of the
3power at that time. If the exercise of the power of attorney requires execution and
4delivery of any instrument that is recordable, the affidavit when authenticated for
5record is likewise recordable. This subsection does not affect any provision in a power
6of attorney for its termination by expiration of time or occurrence of an event other
7than express revocation or a change in the principal's capacity.
SB254-SSA1,3,159
243.07
(6r) Petition to review agent's performance. (a) An interested party
10may petition the court assigned to exercise probate jurisdiction for the county where
11a principal is present or the county of the principal's legal residence to review
12whether the agent is performing his or her duties in accordance with the terms of the
13durable power of attorney executed by the principal. If the court finds after a hearing
14that the agent has not been performing in accordance with the terms of the durable
15power of attorney, the court may do any of the following:
SB254-SSA1,3,1716
1. Direct the agent to act in accordance with the terms of the principal's durable
17power of attorney.
SB254-SSA1,3,1918
2. Require the agent to report to the court concerning performance of the
19agent's duties at periods of time established by the court.
SB254-SSA1,3,2020
3. Rescind all powers of the agent to act under the durable power of attorney.
SB254-SSA1,3,2321
(b) If the principal has designated an alternate agent and if the powers of the
22first-designated agent are rescinded under par. (a) 3., the alternate agent is the
23agent and is subject to par. (a).
SB254-SSA1,4,3
1243.10 Wisconsin basic power of attorney for finances and property. 2(1) Form. The following is the form for the Wisconsin basic power of attorney for
3finances and property:
SB254-SSA1,4,54
WISCONSIN BASIC POWER OF ATTORNEY
5
FOR FINANCES AND PROPERTY
SB254-SSA1,4,246
NOTICE: THIS IS AN IMPORTANT DOCUMENT. BEFORE SIGNING THIS
7DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS. BY SIGNING
8THIS DOCUMENT, YOU ARE NOT GIVING UP ANY POWERS OR RIGHTS TO
9CONTROL YOUR FINANCES AND PROPERTY YOURSELF. IN ADDITION TO
10YOUR OWN POWERS AND RIGHTS, YOU ARE GIVING ANOTHER PERSON,
11YOUR AGENT, BROAD POWERS TO HANDLE YOUR FINANCES AND
12PROPERTY. THIS BASIC POWER OF ATTORNEY FOR FINANCES AND
13PROPERTY MAY GIVE THE PERSON WHOM YOU DESIGNATE (YOUR
14"AGENT") BROAD POWERS TO HANDLE YOUR FINANCES AND PROPERTY,
15WHICH MAY INCLUDE POWERS TO ENCUMBER, SELL OR OTHERWISE
16DISPOSE OF ANY REAL OR PERSONAL PROPERTY WITHOUT ADVANCE
17NOTICE TO YOU OR APPROVAL BY YOU. THE POWERS WILL EXIST AFTER
18YOU BECOME DISABLED, OR INCAPACITATED, IF YOU CHOOSE THAT
19PROVISION. THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE
20MEDICAL OR OTHER HEALTH CARE DECISIONS FOR YOU. IF YOU OWN
21COMPLEX OR SPECIAL ASSETS SUCH AS A BUSINESS, OR IF THERE IS
22ANYTHING ABOUT THIS FORM THAT YOU DO NOT UNDERSTAND, YOU
23SHOULD ASK A LAWYER TO EXPLAIN THIS FORM TO YOU BEFORE YOU
24SIGN IT.
SB254-SSA1,5,13
1IF YOU WISH TO CHANGE YOUR BASIC POWER OF ATTORNEY FOR
2FINANCES AND PROPERTY, YOU MUST COMPLETE A NEW DOCUMENT
3AND REVOKE THIS ONE. YOU MAY REVOKE THIS DOCUMENT AT ANY TIME
4BY DESTROYING IT, BY DIRECTING ANOTHER PERSON TO DESTROY IT IN
5YOUR PRESENCE OR BY SIGNING A WRITTEN AND DATED STATEMENT
6EXPRESSING YOUR INTENT TO REVOKE THIS DOCUMENT. IF YOU
7REVOKE THIS DOCUMENT, YOU SHOULD NOTIFY YOUR AGENT AND ANY
8OTHER PERSON TO WHOM YOU HAVE GIVEN A COPY OF THE FORM. YOU
9ALSO SHOULD NOTIFY ALL PARTIES HAVING CUSTODY OF YOUR ASSETS.
10THESE PARTIES HAVE NO RESPONSIBILITY TO YOU UNLESS YOU
11ACTUALLY NOTIFY THEM OF THE REVOCATION. IF YOUR AGENT IS YOUR
12SPOUSE AND YOUR MARRIAGE IS ANNULLED, OR YOU ARE DIVORCED
13AFTER SIGNING THIS DOCUMENT, THIS DOCUMENT IS INVALID.
SB254-SSA1,5,1714
SINCE SOME 3RD PARTIES OR SOME TRANSACTIONS MAY NOT
15PERMIT USE OF THIS DOCUMENT, IT IS ADVISABLE TO CHECK IN
16ADVANCE, IF POSSIBLE, FOR ANY SPECIAL REQUIREMENTS THAT MAY BE
17IMPOSED.
SB254-SSA1,5,1918
YOU SHOULD SIGN THIS FORM ONLY IF THE AGENT YOU NAME IS
19RELIABLE, TRUSTWORTHY AND COMPETENT TO MANAGE YOUR AFFAIRS.
SB254-SSA1,5,2420
I .... (insert your name and address) appoint .... (insert the name and address
21of the person appointed) as my agent to act for me in any lawful way with respect to
22the powers initialed below. If the person appointed is unable or unwilling to act as
23my agent, I appoint .... (insert name and address of alternate person appointed) to
24act for me in any lawful way with respect to the powers initialed below.
SB254-SSA1,6,2
1TO GRANT ONE OR MORE OF THE FOLLOWING POWERS, INITIAL THE
2LINE IN FRONT OF EACH POWER YOU ARE GRANTING.
SB254-SSA1,6,43
TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF IT.
4YOU MAY, BUT NEED NOT, CROSS OUT EACH POWER WITHHELD.
SB254-SSA1,6,55
handling my money and property
SB254-SSA1,6,87
_____ 1.
PAYMENTS OF BILLS: My agent may make payments that are necessary
8or appropriate in connection with the administration of my affairs.
SB254-SSA1,6,139
_____ 2.
BANKING: My agent may conduct business with financial institutions,
10including endorsing all checks and drafts made payable to my order and collecting
11the proceeds; signing in my name checks or orders on all accounts in my name or for
12my benefit; withdrawing funds from accounts in my name; opening accounts in my
13name; and entering into and removing articles from my safe deposit box.
SB254-SSA1,6,1614
_____ 3.
INSURANCE: My agent may obtain insurance of all types, as considered
15necessary or appropriate, settle and adjust insurance claims and borrow from
16insurers and 3rd parties using insurance policies as collateral.
SB254-SSA1,6,1917
_____ 4.
ACCOUNTS: My agent may ask for, collect and receive money, dividends,
18interest, legacies and property due or that may become due and owing to me and give
19receipt for those payments.
SB254-SSA1,6,2320
_____ 5.
REAL ESTATE: My agent may manage real property; sell, convey and
21mortgage realty for prices and on terms as considered advisable; foreclose mortgages
22and take title to property in my name; and execute deeds, mortgages, releases,
23satisfactions and other instruments relating to realty.
SB254-SSA1,6,2524
_____ 6.
BORROWING: My agent may borrow money and encumber my assets for
25loans as considered necessary.
SB254-SSA1,7,4
1_____ 7.
SECURITIES: My agent may buy, sell, pledge and exchange securities of
2all kinds in my name; sign and deliver in my name transfers and assignments of
3securities; and consent in my name to reorganizations, mergers or exchange of
4securities for new securities.
SB254-SSA1,7,85
_____ 8.
INCOME TAXES: My agent may make and sign tax returns; represent me
6in all income tax matters before any federal, state, or local tax collecting agency; and
7receive confidential information and perform any acts that I may perform, including
8receiving refund checks and the signing of returns.
SB254-SSA1,7,109
_____ 9.
TRUSTS: My agent may transfer at any time any of my property to a living
10trust that has been established by me before the execution of this document.
SB254-SSA1,7,1111
Professional and Technical Assistance
SB254-SSA1,7,1613
_____ 10.
LEGAL ACTIONS: My agent may retain attorneys on my behalf; appear
14for me in all actions and proceedings to which I may be a party; commence actions
15and proceedings in my name; and sign in my name all documents or pleadings of
16every description.
SB254-SSA1,7,1917
_____ 11.
PROFESSIONAL ASSISTANCE: My agent may hire accountants,
18attorneys, clerks, workers and others for the management, preservation and
19protection of my property and estate.
SB254-SSA1,7,2020
General Authority
SB254-SSA1,8,222
_____ 12.
GENERAL: My agent may do any act or thing that I could do in my own
23proper person if personally present. The specifically enumerated powers of the basic
24power of attorney for finances and property are not a limitation of this intended
1broad general power except that my agent may not take any action prohibited by law
2and my agent under this document may not:
SB254-SSA1,8,33
a. Make medical or health care decisions for me.
SB254-SSA1,8,44
b. Make, modify or revoke a will for me.
SB254-SSA1,8,75
c. Other than a burial trust agreement under section 445.125, Wisconsin
6Statutes, enter into a trust agreement on my behalf or amend or revoke a trust
7agreement, entered into by me.
SB254-SSA1,8,118
d. Change any beneficiary designation of any life insurance policy, qualified
9retirement plan, individual retirement account or payable on death account or the
10like whether directly or by canceling and replacing the policy or rollover to another
11plan or account.
SB254-SSA1,8,1212
e. Forgive debts owed to me or disclaim or waive benefits payable to me.