SB254: Bill Text

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1997 - 1998 LEGISLATURE

1997 Senate BILL 254

July 3, 1997 - Introduced by Senator Burke, cosponsored by Representative Green. Referred to Committee on Judiciary, Campaign Finance Reform and Consumer Affairs.

SB254,1,3 An Act to amend 155.60 (2) and 243.07 (1) (a), (2), (3) (a), (4) (b) and (5); to repeal and recreate 243.10; and to create 243.07 (6r) of the statutes; relating to: powers of attorney.

Analysis by the Legislative Reference Bureau

Current law provides a statutory power of attorney form that a person may use to grant broad powers to an agent to handle the person's financial affairs. This bill replaces that statutory power of attorney form with a Wisconsin basic power of attorney for finances and property form. In the current form, the person initials lines that give the agent power in certain areas, such as real estate transactions and banking transactions and lists all of the powers that the agent has related to all of the areas initialed. Under this bill, the person initials lines that give the agent power to generally engage in actions related to specific areas and does not include the list of all the specific powers the agent has, as in current law.

The bill adds language allowing an interested party to petition the court having probate jurisdiction to review an agent's performance and to rescind the agent's power to act under the power of attorney.

Under current law, when a guardian is appointed for a person who has executed a power of attorney for health care, that power of attorney for health care is revoked unless the court finds that the power of attorney for health care should remain in effect. This bill allows the power of attorney for health care to be continued when a guardian is appointed for a person who has executed a power of attorney for health care and gives the guardian the power to revoke or amend the power of attorney for health care.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB254, s. 1 Section 1 . 155.60 (2) of the statutes is amended to read:

SB254,2,11 155.60 (2) If a court under s. 880.33 determines that an individual who is a principal is incompetent or makes a finding of limited incompetency under s. 880.33 (3) and appoints a guardian for the individual, the guardian has the same power to revoke or amend the power of attorney for health care executed under this chapter by that the principal is revoked and the power of attorney for health care instrument is invalid would have had if the principal were not determined to be incompetent, unless the court finds that the power of attorney for health care and power of attorney for health care instrument should remain in effect. If the court makes this finding, the guardian for the individual may not make health care decisions for the ward that may be made by the health care agent, unless the guardian is the health care agent.

SB254, s. 2 Section 2 . 243.07 (1) (a), (2), (3) (a), (4) (b) and (5) of the statutes are amended to read:

SB254,2,21 243.07 (1) (a) "Durable power of attorney" means a power of attorney by which a principal designates another as his or her agent in writing and the writing contains the words "this power of attorney shall not be affected by subsequent disability, or incapacity or incompetency of the principal", or "this power of attorney shall become effective upon the disability, or incapacity or incompetency of the principal", or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's subsequent disability , or incapacity or incompetency.

SB254,3,5 (2) Durable power of attorney not affected by disability. All acts done by an agent pursuant to a durable power of attorney during any period of disability, or incapacity or incompetency of the principal have the same effect and inure to the benefit of and bind the principal and his or her successors in interest as if the principal were competent and not disabled.

SB254,3,13 (3) (a) If, following execution of a durable power of attorney, a court of the principal's domicile appoints a conservator, guardian of the estate, or other fiduciary charged with the management of all of the principal's property or all of his or her property except specified exclusions, the agent is accountable to the fiduciary as well as to the principal. The Unless the court finds that the durable power of attorney should remain in effect, the fiduciary has the same power to revoke or amend the power of attorney that the principal would have had if the principal were not disabled, or incapacitated or incompetent.

SB254,3,19 (4) (b) The disability, or incapacity or incompetency of a principal who has previously executed a written power of attorney that is not a durable power does not revoke or terminate the agency as to the agent or other person, who, without actual knowledge of the disability, or incapacity or incompetency of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and his or her successors in interest.

SB254,4,5 (5) Proof of continuance of durable and other powers of attorney by affidavit. As to acts undertaken in good faith reliance thereon, an affidavit executed by the agent under a power of attorney, durable or otherwise, stating that he or she did not have at the time of exercise of the power actual knowledge of the termination of the power by revocation or of the principal's death, disability , or incapacity or incompetency is conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, the affidavit when authenticated for record is likewise recordable. This subsection does not affect any provision in a power of attorney for its termination by expiration of time or occurrence of an event other than express revocation or a change in the principal's capacity.

SB254, s. 3 Section 3. 243.07 (6r) of the statutes is created to read:

SB254,4,13 243.07 (6r) Petition to review agent's performance. (a) An interested party may petition the court assigned to exercise probate jurisdiction for the county where a principal is present or the county of the principal's legal residence to review whether the agent is performing his or her duties in accordance with the terms of the durable power of attorney executed by the principal. If the court finds after a hearing that the agent has not been performing in accordance with the terms of the durable power of attorney, the court may do any of the following:

SB254,4,15 1. Direct the agent to act in accordance with the terms of the principal's durable power of attorney.

SB254,4,17 2. Require the agent to report to the court concerning performance of the agent's duties at periods of time established by the court.

SB254,4,18 3. Rescind all powers of the agent to act under the durable power of attorney.

SB254,4,21 (b) If the principal has designated an alternate agent and if the powers of the first-designated agent are rescinded under par. (a) 3., the alternate agent is the agent and is subject to par. (a).

SB254, s. 4 Section 4. 243.10 of the statutes is repealed and recreated to read:

SB254,4,25 243.10 Wisconsin basic power of attorney for finances and property. (1) Form. The following is the form for the Wisconsin basic power of attorney for finances and property:

SB254,5,2 WISCONSIN BASIC POWER OF ATTORNEY FOR FINANCES AND PROPERTY

SB254,5,16 NOTICE: THIS IS AN IMPORTANT DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS. THIS BASIC POWER OF ATTORNEY FOR FINANCES AND PROPERTY MAY GIVE THE PERSON WHOM YOU DESIGNATE (YOUR "AGENT") BROAD POWERS TO HANDLE YOUR FINANCES AND PROPERTY, WHICH MAY INCLUDE POWERS TO ENCUMBER, SELL OR OTHERWISE DISPOSE OF ANY REAL OR PERSONAL PROPERTY WITHOUT ADVANCE NOTICE TO YOU OR APPROVAL BY YOU. THE POWERS WILL EXIST AFTER YOU BECOME DISABLED, OR INCAPACITATED, IF YOU CHOOSE THAT PROVISION. THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL OR OTHER HEALTH CARE DECISIONS FOR YOU. IF YOU OWN COMPLEX OR SPECIAL ASSETS SUCH AS A BUSINESS, OR IF THERE IS ANYTHING ABOUT THIS FORM THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER TO EXPLAIN THIS FORM TO YOU BEFORE YOU SIGN IT.

SB254,6,2 IF YOU WISH TO CHANGE YOUR BASIC POWER OF ATTORNEY FOR FINANCES AND PROPERTY, YOU MAY REVOKE THIS DOCUMENT AT ANY TIME BY DESTROYING IT, BY DIRECTING ANOTHER PERSON TO DESTROY IT IN YOUR PRESENCE OR BY SIGNING A WRITTEN AND DATED STATEMENT EXPRESSING YOUR INTENT TO REVOKE THIS DOCUMENT. IF YOU REVOKE THIS DOCUMENT, YOU SHOULD NOTIFY YOUR AGENT AND ANY OTHER PERSON TO WHOM YOU HAVE GIVEN A COPY OF THE FORM. IF YOUR AGENT IS YOUR SPOUSE AND YOUR MARRIAGE IS ANNULLED, OR YOU ARE DIVORCED AFTER SIGNING THIS DOCUMENT, THIS DOCUMENT IS INVALID.

SB254,6,6 SINCE SOME 3RD PARTIES OR SOME TRANSACTIONS MAY NOT PERMIT USE OF THIS DOCUMENT, IT IS ADVISABLE TO CHECK IN ADVANCE, IF POSSIBLE, FOR ANY SPECIAL REQUIREMENTS THAT MAY BE IMPOSED.

SB254,6,8 YOU SHOULD SIGN THIS FORM ONLY IF THE AGENT YOU NAME IS RELIABLE, TRUSTWORTHY AND COMPETENT TO MANAGE YOUR AFFAIRS.

SB254,6,14 I .... (insert your name and address) appoint .... (insert the name and address of the person appointed) as my agent to act for me in any lawful way with respect to the powers initialed below. If the person appointed is unable or unwilling to act as my agent, I appoint .... (insert name and address of alternate person appointed) to act for me in any lawful way with respect to the powers initialed below.

SB254,6,16 TO GRANT ONE OR MORE OF THE FOLLOWING POWERS, INITIAL THE LINE IN FRONT OF EACH POWER YOU ARE GRANTING.

SB254,6,18 TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF IT. YOU MAY, BUT NEED NOT, CROSS OUT EACH POWER WITHHELD.

SB254,6,19 handling my money and property

SB254,6,20 Initials

SB254,6,22 _____ 1. PAYMENTS OF BILLS: My agent may make payments that are necessary or appropriate in connection with the administration of my affairs.

SB254,7,2 _____ 2. BANKING: My agent may conduct business with financial institutions, including endorsing all checks and drafts made payable to my order and collecting the proceeds; signing in my name checks or orders on all accounts in my name or for my benefit; withdrawing funds from accounts in my name; opening accounts in my name; and entering into and removing articles from my safe deposit box.

SB254,7,5 _____ 3. INSURANCE: My agent may obtain insurance of all types, as considered necessary or appropriate, settle and adjust insurance claims and borrow from insurers and 3rd parties using insurance policies as collateral.

SB254,7,8 _____ 4. ACCOUNTS: My agent may ask for, collect and receive money, dividends, interest, legacies and property due or that may become due and owing to me and give receipt for those payments.

SB254,7,12 _____ 5. REAL ESTATE: My agent may manage real property; sell, convey and mortgage realty for prices and on terms as considered advisable; foreclose mortgages and take title to property in my name; and execute deeds, mortgages, releases, satisfactions and other instruments relating to realty.

SB254,7,14 _____ 6. BORROWING: My agent may borrow money and encumber my assets for loans as considered necessary.

SB254,7,18 _____ 7. SECURITIES: My agent may buy, sell, pledge and exchange securities of all kinds in my name; sign and deliver in my name transfers and assignments of securities; and consent in my name to reorganizations, mergers or exchange of securities for new securities.

SB254,7,22 _____ 8. INCOME TAXES: My agent may make and sign tax returns; represent me in all income tax matters before any federal, state, or local tax collecting agency; and receive confidential information and perform any acts that I may perform, including receiving refund checks and the signing of returns.

SB254,7,24 _____ 9. TRUSTS: My agent may transfer at any time any of my property to a living trust that has been established by me before the execution of this document.

SB254,7,25 GIFTS

SB254,8,3 Because of the significant and potentially serious consequences of the authority to make gifts, this provision should be read carefully and all blanks must be completed if the gift authority is granted.