AB704: Bill Text

AB704,14,13 (b) Act so as not to create a conflict of interest that impairs the agent's ability to act impartially in the principal's best interest.

AB704,14,15 (c) Act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances.

AB704,14,17 (d) Keep a record of all receipts, disbursements, and transactions made on behalf of the principal.

AB704,14,21 (e) Cooperate with a person that has authority to make health-care decisions for the principal to carry out the principal's reasonable expectations to the extent actually known by the agent and, if those expectations are not known, act in the principal's best interest.

AB704,14,24 (f) Attempt to preserve the principal's estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal's best interest based on all relevant factors, including all of the following:

AB704,14,25 1. The value and nature of the principal's property.

AB704,15,1 2. The principal's foreseeable obligations and need for maintenance.

AB704,15,3 3. The minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes.

AB704,15,5 4. Eligibility for a benefit, a program, or assistance under a statute, rule, or regulation.

AB704,15,7 (3) An agent who acts in good faith is not liable to any beneficiary of the principal's estate plan for failure to preserve the plan.

AB704,15,11 (4) An agent who acts with care, competence, and diligence for the best interest of the principal is not liable solely because the agent also benefits from the act or has an individual or conflicting interest in relation to the property or affairs of the principal.

AB704,15,16 (5) If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent's representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence, and diligence under the circumstances.

AB704,15,18 (6) Absent a breach of duty to the principal, an agent is not liable if the value of the principal's property declines.

AB704,15,23 (7) An agent who exercises authority to delegate to another person the authority granted by the principal or that engages another person on behalf of the principal is not liable for an act, error of judgment, or default of that person if the agent exercises care, competence, and diligence in selecting and monitoring the person.

AB704,16,3 (8) Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements, or transactions conducted on behalf of the principal unless ordered by a court or requested by one of the following:

AB704,16,4 (a) The principal.

AB704,16,5 (b) A guardian, a conservator, or another fiduciary acting for the principal.

AB704,16,7 (c) A governmental agency having regulatory authority to protect the welfare of the principal.

AB704,16,9 (d) Upon the death of the principal, by the personal representative or successor in interest of the principal's estate.

AB704,16,13 (9) If ordered or requested to disclose information under sub. (8), the agent shall comply with the request within 30 days or provide a writing or other record substantiating why additional time is needed and shall comply with the request within an additional 30 days.

AB704,16,17 244.15 Exoneration of agent. A provision in a power of attorney relieving an agent of liability for breach of duty is binding on the principal and the principal's successors in interest except to the extent that the provision does any of the following:

AB704,16,20 (1) Relieves the agent of liability for breach of duty committed dishonestly, with an improper motive, or with reckless indifference to the purposes of the power of attorney or the best interest of the principal.

AB704,16,22 (2) Was inserted as a result of an abuse of a confidential or fiduciary relationship with the principal.

AB704,17,2 244.16 Judicial relief. (1) The following persons may petition the circuit court of the county where the principal is present or of the county of the principal's legal residence to construe a power of attorney or review the agent's conduct, and grant appropriate relief:

AB704,17,3 (a) The principal or the agent.

AB704,17,4 (b) A guardian, conservator, or other fiduciary acting for the principal.

AB704,17,5 (c) A person authorized to make health-care decisions for the principal.

AB704,17,6 (d) The principal's spouse, parent, or descendant.

AB704,17,7 (e) The principal's domestic partner.

AB704,17,8 (f) An individual who would qualify as a presumptive heir of the principal.

AB704,17,11 (g) A person named as a beneficiary to receive any property, benefit, or contractual right on the principal's death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal's estate.

AB704,17,13 (h) A governmental agency having regulatory authority to protect the welfare of the principal.

AB704,17,15 (i) The principal's caregiver or another person that demonstrates sufficient interest in the principal's welfare.

AB704,17,16 (j) A person asked to accept the power of attorney.

AB704,17,19 (2) Upon motion by the principal, the court shall dismiss a petition filed under this section, unless the court finds that the principal lacks capacity to revoke the agent's authority or the power of attorney.

AB704,17,22 244.17 Agent's liability. An agent who violates this chapter is liable to the principal or the principal's successors in interest for the amount required to do all of the following:

AB704,17,24 (1) Restore the value of the principal's property to what it would have been had the violation not occurred.

AB704,18,2 (2) Reimburse the principal or the principal's successors in interest for the attorney fees and costs paid on the agent's behalf.

AB704,18,5 244.18 Agent's resignation; notice. Unless the power of attorney provides a different method for an agent's resignation, an agent may resign by giving notice to the principal and, if the principal is incapacitated, to any of the following:

AB704,18,7 (1) To the guardian, if one has been appointed for the principal, and a coagent or successor agent.

AB704,18,8 (2) If there is no person described in sub. (1), to any of the following:

AB704,18,9 (a) The principal's caregiver.

AB704,18,11 (b) Another person reasonably believed by the agent to have sufficient interest in the principal's welfare.

AB704,18,13 (c) A governmental agency having regulatory authority to protect the welfare of the principal.

AB704,18,17 244.19 Protection of persons that accept and rely upon an acknowledged power of attorney. (1) For purposes of this section and s. 244.20, "acknowledged" means the taking of an acknowledgment before a notarial officer authorized to take acknowledgements under s. 706.07.

AB704,18,20 (2) A person that in good faith accepts an acknowledged power of attorney without actual knowledge that the signature is not genuine may rely upon the presumption under s. 244.05 that the signature is genuine.

AB704,18,22 (3) (a) A person that in good faith accepts an acknowledged power of attorney without actual knowledge of any of the following may act as provided in par. (b):

AB704,18,23 1. That the power of attorney is void, invalid, or terminated.

AB704,18,24 2. That the purported agent's authority is void, invalid, or terminated.

AB704,18,25 3. That the agent is exceeding or improperly exercising the agent's authority.

AB704,19,4 (b) A person described in par. (a) may rely upon the power of attorney as if the power of attorney were genuine, valid, and still in effect, the agent's authority were genuine, valid, and still in effect, and the agent had not exceeded and had properly exercised the authority.

AB704,19,6 (4) A person who is asked to accept an acknowledged power of attorney may request and rely upon, without further investigation, all of the following:

AB704,19,8 (a) An agent's certification under penalty of perjury of any factual matter concerning the principal, agent, or power of attorney.

AB704,19,10 (b) An English translation of the power of attorney if the power of attorney contains, in whole or in part, language other than English.

AB704,19,13 (c) An opinion of counsel as to any matter of law concerning the power of attorney if the person making the request provides in a writing or other record the reason for the request.

AB704,19,15 (5) An English translation or an opinion of counsel requested under this section must be provided at the principal's expense.

AB704,19,19 (6) For purposes of this section, a person that conducts activities through employees is without actual knowledge of a fact relating to a power of attorney, a principal, or an agent if the employee conducting the transaction involving the power of attorney is without actual knowledge of the fact.

AB704,19,22 244.20 Refusal to accept acknowledged power of attorney. (1) A person may, in good faith, refuse to accept an acknowledged power of attorney within 10 business days of presentment if any of the following applies:

AB704,19,24 (a) The person is not otherwise required to engage in a transaction with the principal in the same circumstances.

AB704,20,2 (b) Engaging in a transaction with the agent or the principal in the same circumstances would be inconsistent with federal or state law.

AB704,20,4 (c) The person has actual knowledge of the termination of the agent's authority or of the power of attorney before exercise of the power of attorney.

AB704,20,6 (d) A request for a certification, a translation, or an opinion of counsel under s. 244.19 (4) is refused.

AB704,20,11 (e) The person believes that the power of attorney is not valid, that the agent does not have the authority to perform the act requested, or that the person presenting the power of attorney is not the agent named in the power of attorney, whether or not a certification, a translation, or an opinion of counsel under s. 244.19 (4) has been requested or provided.

AB704,20,16 (f) The person makes, or has actual knowledge that another person has made, a report to the designated adult at risk or elder adult at risk agency, or to a law enforcement agency, stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent.

AB704,20,19 (g) The person brought, or has actual knowledge that another person has brought, an action under s. 244.16 for construction of a power of attorney or review of the agent's conduct.

AB704,20,22 (h) The power of attorney becomes effective upon the occurrence of an event or contingency, and neither a certification nor evidence of the occurrence of the event or contingency is presented to the person being asked to accept the power of attorney.

AB704,20,24 (i) The person has any other reasonable belief that the power of attorney is illegal or unenforceable and should be refused.

AB704,21,2 (2) A person may not refuse to accept an acknowledged power of attorney if any of the following applies:

AB704,21,4 (a) The person's reason for refusal is based exclusively on the date the power of attorney was executed.

AB704,21,6 (b) The person's reason for refusal is based exclusively on a mandate that an additional or different power of attorney form must be used.

AB704,21,7 (c) The person has no good faith basis for refusal under sub. (1).

AB704,21,11 (3) If a person requests a certification, a translation, or an opinion of counsel under s. 244.19 (4), the person shall accept the power of attorney no later than 5 business days after receipt of the certification, translation, or opinion of counsel, provided that there is no other good faith reason to refuse under sub. (1).

AB704,21,13 (4) It is not a refusal to accept an acknowledged power of attorney if any of the following applies:

AB704,21,15 (a) The person requests but does not require that an additional or different power of attorney form be used.

AB704,21,17 (b) The person has requested but has not received a certification, a translation, or an opinion of counsel under s. 244.19 (4).

AB704,21,20 (5) If a person refuses to accept an acknowledged power of attorney in violation of this section, the person requesting the acceptance may request that a court order all of the following:

AB704,21,21 (a) Acceptance of the power of attorney.

AB704,21,25 (b) In any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney, payment of reasonable attorney fees, notwithstanding s. 814.04 (1), and costs by the person who refuses to accept the power of attorney.

AB704,22,3 (6) If a court determines that a proceeding to mandate acceptance of an acknowledged power of attorney was brought other than in good faith, the court may award reasonable attorney fees and costs to the prevailing party.

AB704,22,6 244.21 Laws applicable to financial institutions and entities. This chapter does not supersede any other law applicable to financial institutions or insurance companies, and the other law controls if in conflict with this chapter.

AB704,22,7 subchapter II

AB704,22,8 Authority

AB704,22,14 244.41 Authority that requires specific grant, grant of general authority. (1) An agent under a power of attorney may do any of the following on behalf of the principal or with the principal's property only if the power of attorney expressly grants the agent the authority and the exercise of that authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject:

AB704,22,15 (a) Create, amend, revoke, or terminate an inter vivos trust.

AB704,22,16 (b) Make a gift.

AB704,22,17 (c) Create or change rights of survivorship.

AB704,22,18 (d) Create or change a beneficiary designation.

AB704,22,19 (e) Delegate authority granted under the power of attorney.

AB704,22,21 (f) Waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan.