SB529: Bill Text

SB529,8,11 244.03 Applicability. This chapter applies to all powers of attorney except for the following:

SB529,8,14 (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.

SB529,8,15 (2) A power to make health-care decisions.

SB529,8,17 (3) A proxy or other delegation to exercise voting rights or management rights with respect to an entity.

SB529,8,19 (4) A power created on a form prescribed by a government or governmental subdivision, agency, or instrumentality for a governmental purpose.

SB529,8,22 244.04 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.

SB529,9,3 244.05 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.

SB529,9,6 244.06 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.

SB529,9,9 (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.

SB529,9,11 (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:

SB529,9,13 (a) The law of the jurisdiction that determines the meaning and effect of the power of attorney, as provided under s. 244.07.

SB529,9,14 (b) The requirements for a military power of attorney under 10 USC 1044b.

SB529,9,16 (4) A photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original.

SB529,9,20 244.07 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.

SB529,9,23 (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.

SB529,9,25 244.08 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.

SB529,10,8 (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.

SB529,10,12 244.09 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.

SB529,10,15 (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.

SB529,10,20 (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:

SB529,10,22 (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).

SB529,10,24 (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).

SB529,11,5 (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.

SB529,11,7 244.10 Termination of power of attorney or agent's authority. (1) A power of attorney terminates when any of the following occurs:

SB529,11,8 (a) The principal dies.

SB529,11,9 (b) The principal becomes incapacitated, if the power of attorney so provides.

SB529,11,10 (c) The principal revokes the power of attorney.

SB529,11,11 (d) The power of attorney provides that it terminates.

SB529,11,12 (e) The purpose of the power of attorney is accomplished.

SB529,11,15 (f) The principal revokes the agent's authority or the agent dies, becomes incapacitated, or resigns, and the power of attorney does not provide for another agent to act under the power of attorney.

SB529,11,16 (2) An agent's authority terminates when any of the following occurs:

SB529,11,17 (a) The principal revokes the authority.

SB529,11,18 (b) The agent dies, becomes incapacitated, or resigns.

SB529,11,21 (c) An action is filed for the dissolution or annulment of the agent's marriage to the principal or their legal separation, unless the power of attorney otherwise provides.

SB529,11,22 (d) The power of attorney terminates.

SB529,11,24 (e) The domestic partnership of the principal and agent under ch. 770 is terminated unless the power of attorney otherwise provides.

SB529,12,3 (3) Unless the power of attorney otherwise provides, an agent's authority is exercisable until the authority terminates under sub. (2), notwithstanding a lapse of time since the execution of the power of attorney.

SB529,12,8 (4) Termination of an agent's authority or of a power of attorney is not effective as to the agent or another person that, without actual knowledge of the termination, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest.

SB529,12,13 (5) Incapacity of the principal of a power of attorney that is not durable does not revoke or terminate the power of attorney as to an agent or other person that, without actual knowledge of the incapacity, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest.

SB529,12,17 (6) The execution of a power of attorney does not revoke a power of attorney previously executed by the principal unless the subsequent power of attorney provides that the previous power of attorney is revoked or that all other powers of attorney are revoked.

SB529,12,20 244.11 Coagents and successor agents. (1) A principal may designate in a power of attorney 2 or more persons to act as coagents. Unless the power of attorney otherwise provides, each coagent may exercise its authority independently.

SB529,13,2 (2) A principal may designate in a power of attorney one or more successor agents to act if an agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve. A principal may grant authority to designate one or more successor agents to an agent or other person designated by name, office, or function. Unless the power of attorney otherwise provides, a successor agent is subject to all of the following:

SB529,13,3 (a) Has the same authority as that granted to the original agent.

SB529,13,5 (b) May not act until all predecessor agents have resigned, died, become incapacitated, are no longer qualified to serve, or have declined to serve.

SB529,13,9 (3) Except as otherwise provided in the power of attorney and sub. (4), an agent who does not participate in or conceal a breach of fiduciary duty committed by another agent, including a predecessor agent, is not liable for the actions of the other agent.

SB529,13,15 (4) An agent who has actual knowledge of a breach or imminent breach of fiduciary duty by another agent shall notify the principal and, if the principal is incapacitated, take any other action reasonably appropriate in the circumstances to safeguard the principal's best interest. An agent who fails to take action as required by this subsection is liable for the reasonably foreseeable damages that could have been avoided if the agent had notified the principal or taken other action.

SB529,13,19 244.12 Reimbursement and compensation of agent. Except as otherwise provided in the power of attorney, an agent is entitled to reimbursement of any expenses reasonably incurred on behalf of the principal and to compensation that is reasonable under the circumstances.

SB529,13,23 244.13 Agent's acceptance. Except as otherwise provided in the power of attorney, a person accepts appointment as an agent under a power of attorney by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance.

SB529,14,3 244.14 Agent's duties. (1) Notwithstanding any provisions to the contrary in the power of attorney, an agent who has accepted appointment shall do all of the following:

SB529,14,6 (a) Act in accordance with the principal's reasonable expectations to the extent actually known by the agent and, if those expectations are not known, in the principal's best interest,

SB529,14,7 (b) Act in good faith.

SB529,14,8 (c) Act only within the scope of authority granted in the power of attorney.

SB529,14,10 (2) Except as otherwise provided in the power of attorney, an agent who has accepted an appointment shall do all of the following:

SB529,14,11 (a) Act loyally for the principal's benefit.

SB529,14,13 (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.

SB529,14,15 (c) Act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances.

SB529,14,17 (d) Keep a record of all receipts, disbursements, and transactions made on behalf of the principal.

SB529,14,21 (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.

SB529,14,24 (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:

SB529,14,25 1. The value and nature of the principal's property.

SB529,15,1 2. The principal's foreseeable obligations and need for maintenance.

SB529,15,3 3. The minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes.

SB529,15,5 4. Eligibility for a benefit, a program, or assistance under a statute, rule, or regulation.

SB529,15,7 (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.

SB529,15,11 (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.

SB529,15,16 (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.

SB529,15,18 (6) Absent a breach of duty to the principal, an agent is not liable if the value of the principal's property declines.

SB529,15,23 (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.

SB529,16,3 (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:

SB529,16,4 (a) The principal.

SB529,16,5 (b) A guardian, a conservator, or another fiduciary acting for the principal.

SB529,16,7 (c) A governmental agency having regulatory authority to protect the welfare of the principal.

SB529,16,9 (d) Upon the death of the principal, by the personal representative or successor in interest of the principal's estate.

SB529,16,13 (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.

SB529,16,17 244.15 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:

SB529,16,20 (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.

SB529,16,22 (2) Was inserted as a result of an abuse of a confidential or fiduciary relationship with the principal.

SB529,17,2 244.16 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:

SB529,17,3 (a) The principal or the agent.

SB529,17,4 (b) A guardian, conservator, or other fiduciary acting for the principal.

SB529,17,5 (c) A person authorized to make health-care decisions for the principal.

SB529,17,6 (d) The principal's spouse, parent, or descendant.

SB529,17,7 (e) The principal's domestic partner.

SB529,17,8 (f) An individual who would qualify as a presumptive heir of the principal.

SB529,17,11 (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.

SB529,17,13 (h) A governmental agency having regulatory authority to protect the welfare of the principal.

SB529,17,15 (i) The principal's caregiver or another person that demonstrates sufficient interest in the principal's welfare.

SB529,17,16 (j) A person asked to accept the power of attorney.

SB529,17,19 (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.