LRB-4147/1
RPN:wlj:md
2009 - 2010 LEGISLATURE
February 5, 2010 - Introduced by Representatives Cullen, Molepske Jr., Turner,
Berceau, Vos, Zepnick, Smith and Roys, cosponsored by Senators Risser,
Taylor and Lehman. Referred to Committee on Judiciary and Ethics.
AB704,1,5
1An Act to repeal 243.07 and 243.10;
to amend 46.90 (1) (eg) 3., 50.06 (5) (b),
254.01 (9), 54.01 (17) (a) 4., 54.01 (17) (b) 4., 54.10 (3) (c) 3., 54.40 (4) (d) 1., 54.46
3(3) (a) 4., 54.63 (1) (b) 4., 55.075 (4) (a) 4., 155.70 (4) (a), 180.0722 (2) (a),
4221.0519 (2) and 854.08 (5) (a); and
to create chapter 244 of the statutes;
5relating to: uniform power of attorney for finances and property.
Analysis by the Legislative Reference Bureau
Current law includes language that is based on the Uniform Durable Power of
Attorney Act, as approved by the National Conference of Commissioners on Uniform
State Laws in 1979. Under that uniform act, the traditional power of an agent to act
on behalf of the principal in legal or business matters may be made durable. A
durable power of attorney is a power that continues or, sometimes, begins after the
principal becomes incapacitated. Current law also includes a statutory power of
attorney form based on the Uniform Statutory Power of Attorney Act, which provides
a statutory power of attorney form that is legally sufficient.
This bill adopts the Uniform Power of Attorney Act to provide the statutory
authorization for a person to act on someone else's behalf in legal or business matters.
The new uniform act supersedes both prior uniform acts. The person authorized to
act is the "agent," and the person granting the authorization is the "principal." The
durable power of attorney offers a method of surrogate decision making for persons
whose modest assets may not justify incapacity planning with a trust. The durable
power of attorney is also used to avoid guardianship.
This bill includes definitions and general rules that are not in current law. The
term "incapacity" replaces the term "disability" used in current law. The bill's
definition of "incapacity" is consistent with the standard for appointment of a
guardian under current law. Under the bill, a power of attorney is durable unless
it contains express language indicating otherwise. The bill also provides that, unless
the principal specifies that the power of attorney is to become effective upon a future
date or event, the authority of an agent becomes effective when the power of attorney
is executed. Current law requires express language to make the power durable and
is silent on when the agent's authority becomes effective.
The bill provides that the authority granted to a principal's spouse is revoked
upon the commencement of proceedings for legal separation, marital dissolution, or
annulment. The bill also provides that the authority granted to the principal's
domestic partner is revoked if the domestic partnership is terminated. The bill also
provides guidance where there is none in current law regarding the default rules for
co-agents' and successor agents' reimbursement and compensation, an agent's
acceptance of appointment, the agent's duties, and an agent's resignation. The bill
sets out a comprehensive list of persons who may petition the court to review the
agent's conduct, and addresses agent liability.
The bill includes a new provision that protects persons who in good faith accept
an acknowledged power of attorney without actual knowledge that the power of
attorney is revoked, terminated, or invalid or that the agent is exceeding or
improperly exercising the agent's powers.
The bill specifies when a person may, in good faith, refuse to accept an
acknowledged power of attorney. For example, a person may refuse if the power of
attorney would be inconsistent with federal law, when the person has actual
knowledge of the termination of the agent's authority, when the person believes the
power of attorney is not valid, when the power of attorney becomes effective upon the
occurrence of another event that the person does not have evidence of having
occurred, and when the person has reasonable belief that the power of attorney is
illegal. The bill allows a person whose power of attorney is not accepted to ask a court
to order the other person to accept the power of attorney and to pay the costs and
attorney fees incurred by the person seeking the court order.
The bill clarifies that the power of attorney is supplemented by the principles
of common law to the extent those principles are not displaced by specific provisions
and that the new statutory language is not intended to supersede any law applicable
to financial institutions or insurance businesses. The bill further provides that the
remedies under the bill are not exclusive and do not abrogate any other cause of
action or remedy that may be available under current law.
The bill offers detailed descriptions of the authority under the power of attorney
relating to subjects such as "real property," "retirement plans," and "taxes." A
principal may, under the bill, incorporate a particular authority in full into the power
of attorney either by a reference to the short descriptive term for the subject used in
the bill or by a reference to the statutory section number. The bill also addresses
concerns about certain types of authority that might be used to dissipate the
principal's property or alter the principal's estate plan by listing specific types of
authority that cannot be inferred from a grant of general authority, but which may
be granted only through express language in the power of attorney. The bill contains
a default rule prohibiting an agent, other than the principal's spouse or domestic
partner, from making a gift to the agent or certain other persons. Current statutory
language is silent on these issues.
Finally, the bill includes the statutory durable power of attorney form. As under
current law, the statutory form is optional and is designed for use by lawyers as well
as laypersons. The form in this bill contains, in plain language, instructions to the
principal and agent. Step-by-step prompts are given for designation of the agent
and successor agents, and the granting of of general and specific authority. In the
section of the form addressing general authority, the principal must initial the
subjects over which the principal wishes to delegate general authority to the agent.
The bill also contains a sample agent certification form.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB704, s. 1
1Section
1. 46.90 (1) (eg) 3. of the statutes is amended to read:
AB704,3,22
46.90
(1) (eg) 3. An agent under a power of attorney under ch.
243 244.
AB704, s. 2
3Section
2. 50.06 (5) (b) of the statutes is amended to read:
AB704,3,74
50.06
(5) (b) An individual who consents to an admission under this section
5may not authorize expenditures related to health care if the incapacitated individual
6has an agent under a durable power of attorney, as defined in s.
243.07 (1) (a) 244.02
7(3), who may authorize expenditures related to health care.
AB704, s. 3
8Section
3. 54.01 (9) of the statutes is amended to read:
AB704,3,109
54.01
(9) "Durable power of attorney" has the meaning given in s.
243.07 (1)
10(a) 244.02 (3).
AB704, s. 4
11Section
4. 54.01 (17) (a) 4. of the statutes is amended to read:
AB704,4,212
54.01
(17) (a) 4. Any individual who is nominated as guardian, any individual
13who is appointed to act as guardian or fiduciary for the proposed ward by a court of
14any state, any trustee for a trust established by or for the proposed ward, any person
15appointed as agent under a power of attorney for health care, as defined in s. 155.01
1(4), or any person appointed as agent under a durable power of attorney under ch.
2243 244.
AB704, s. 5
3Section
5. 54.01 (17) (b) 4. of the statutes is amended to read:
AB704,4,54
54.01
(17) (b) 4. Any person appointed as agent under a durable power of
5attorney under ch.
243 244, unless the agency is revoked or terminated by a court.
AB704, s. 6
6Section
6. 54.10 (3) (c) 3. of the statutes is amended to read:
AB704,4,117
54.10
(3) (c) 3. Whether the proposed ward has engaged in any advance
8planning for financial and health care decision making that would avoid
9guardianship, including by executing a durable power of attorney under ch.
243 244,
10a power of attorney for health care, as defined in s. 155.01 (10), a trust, or a jointly
11held account.
AB704, s. 7
12Section
7. 54.40 (4) (d) 1. of the statutes is amended to read:
AB704,4,1613
54.40
(4) (d) 1. Review any power of attorney for health care under ch. 155, any
14durable power of attorney under ch.
243 244 executed by the proposed ward, and any
15other advance planning for financial and health care decision making in which the
16proposed ward had engaged.
AB704, s. 8
17Section
8. 54.46 (3) (a) 4. of the statutes is amended to read:
AB704,4,2018
54.46
(3) (a) 4. Whether the ward had executed a durable power of attorney
19under
s. 243.07 ch. 244 or a power of attorney for health care under s. 155.05 or had
20engaged in other advance planning for financial and health care decision making.
AB704, s. 9
21Section
9. 54.63 (1) (b) 4. of the statutes is amended to read:
AB704,4,2422
54.63
(1) (b) 4. The agent under the ward's power of attorney for health care
23under ch. 155, if any, and the agent under the ward's durable power of attorney under
24ch.
243 244, if any.
AB704, s. 10
25Section
10. 55.075 (4) (a) 4. of the statutes is amended to read:
AB704,5,5
155.075
(4) (a) 4. Whether the individual sought to be protectively placed or
2protectively served had executed a durable power of attorney
for finances and
3property under
s. 243.07 ch. 244 or a power of attorney for health care under s. 155.05
4or had provided advance consent to nursing home admission or engaged in other
5advance planning to avoid protective placement or protective services.
AB704, s. 11
6Section
11. 155.70 (4) (a) of the statutes is amended to read:
AB704,5,97
155.70
(4) (a) Nothing in this chapter may be construed to render invalid a
8durable power of attorney that is executed under s. 243.07
, 2007 stats., prior to April
928, 1990.
AB704, s. 12
10Section
12. 180.0722 (2) (a) of the statutes is amended to read:
AB704,5,1511
180.0722
(2) (a) A shareholder entitled to vote at a meeting of shareholders, or
12to express consent or dissent in writing to any corporate action without a meeting of
13shareholders, may authorize another person to act for the shareholder by appointing
14the person as proxy. An appointment of a proxy may be in durable form as provided
15in
s. 243.07 ch. 244.
AB704, s. 13
16Section
13. 221.0519 (2) of the statutes is amended to read:
AB704,5,2017
221.0519
(2) Method of appointing a proxy. A shareholder may appoint a
18proxy to vote or otherwise act for the shareholder by signing an appointment form,
19either personally or by his or her attorney-in-fact. An appointment of a proxy may
20be in durable form as provided in s.
243.07 244.04.
AB704, s. 14
21Section
14. 243.07 of the statutes is repealed.
AB704,6,32
Uniform power of attorney
3
For finances and property
AB704,6,55
General provisions
AB704,6,7
6244.01 Short title. This chapter may be cited as the Uniform Power of
7Attorney for Finances and Property Act.
AB704,6,8
8244.02 Definitions. In this chapter:
AB704,6,10
9(1) "Agent" means a person granted authority to act for a principal under a
10power of attorney, whether denominated an agent, attorney-in-fact, or otherwise.
AB704,6,11
11(2) "Domestic partner" has the meaning given in s. 770.01 (1).
AB704,6,13
12(3) "Durable power of attorney" means a power of attorney that is not
13terminated by the principal's incapacity.
AB704,6,15
14(4) "Electronic" means relating to technology having electrical, digital,
15magnetic, wireless, optical, electromagnetic, or similar capabilities.
AB704,6,16
16(5) "Genuine" means free of forgery or counterfeiting.
AB704,6,17
17(6) "Good faith" means honesty in fact.
AB704,6,19
18(7) "Incapacity" means inability of an individual to manage property, finances,
19or business affairs because the individual meets one of the following criteria:
AB704,6,2120
(a) Has an impairment in the ability to receive and evaluate information or
21make or communicate decisions even with the use of technological assistance.
AB704,6,2222
(b) Is missing.
AB704,6,2323
(c) Is detained, including incarceration in a correctional facility.
AB704,6,2424
(d) Is outside the United States and unable to return.
AB704,7,4
1(8) "Person" means an individual, corporation, business trust, estate, trust,
2partnership, limited liability company, association, joint venture, public corporation,
3government or governmental subdivision, agency, or instrumentality, or any other
4legal or commercial entity.
AB704,7,7
5(9) "Power of attorney" means a writing or other record that grants authority
6to an agent to act in the place of the principal, whether or not the term power of
7attorney is used.
AB704,7,14
8(10) "Presently exercisable general power of appointment," with respect to
9property or a property interest subject to a power of appointment, means power
10exercisable at the time in question to vest absolute ownership in the principal
11individually, the principal's estate, the principal's creditors, or the creditors of the
12principal's estate. The term does not include a power exercisable in a fiduciary
13capacity or only by will. The term includes a power of appointment that is exercisable
14only when one of the following circumstances exists:
AB704,7,1515
(a) The occurrence of a specified event.
AB704,7,1616
(b) The satisfaction of an ascertainable standard.
AB704,7,1917
(c) The passage of a specified period only after the occurrence of the specified
18event, the satisfaction of the ascertainable standard, or the passage of the specified
19period.