SB529: Bill Text

February 9, 2010 - Introduced by Senators Risser, Taylor and Lehman, cosponsored by Representatives Cullen, Molepske Jr., Turner, Berceau, Vos, Zepnick, Smith and Roys. Referred to Committee on Judiciary, Corrections, Insurance, Campaign Finance Reform, and Housing.

SB529,1,5 An Act to repeal 243.07 and 243.10; to amend 46.90 (1) (eg) 3., 50.06 (5) (b), 54.01 (9), 54.01 (17) (a) 4., 54.01 (17) (b) 4., 54.10 (3) (c) 3., 54.40 (4) (d) 1., 54.46 (3) (a) 4., 54.63 (1) (b) 4., 55.075 (4) (a) 4., 155.70 (4) (a), 180.0722 (2) (a), 221.0519 (2) and 854.08 (5) (a); and to create chapter 244 of the statutes; relating 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:

SB529, s. 1 Section 1. 46.90 (1) (eg) 3. of the statutes is amended to read:

SB529,3,2 46.90 (1) (eg) 3. An agent under a power of attorney under ch. 243 244.

SB529, s. 2 Section 2. 50.06 (5) (b) of the statutes is amended to read:

SB529,3,7 50.06 (5) (b) An individual who consents to an admission under this section may not authorize expenditures related to health care if the incapacitated individual has an agent under a durable power of attorney, as defined in s. 243.07 (1) (a) 244.02 (3), who may authorize expenditures related to health care.

SB529, s. 3 Section 3. 54.01 (9) of the statutes is amended to read:

SB529,3,10 54.01 (9) "Durable power of attorney" has the meaning given in s. 243.07 (1) (a) 244.02 (3).

SB529, s. 4 Section 4. 54.01 (17) (a) 4. of the statutes is amended to read:

SB529,4,2 54.01 (17) (a) 4. Any individual who is nominated as guardian, any individual who is appointed to act as guardian or fiduciary for the proposed ward by a court of any state, any trustee for a trust established by or for the proposed ward, any person appointed as agent under a power of attorney for health care, as defined in s. 155.01 (4), or any person appointed as agent under a durable power of attorney under ch. 243 244.

SB529, s. 5 Section 5. 54.01 (17) (b) 4. of the statutes is amended to read:

SB529,4,5 54.01 (17) (b) 4. Any person appointed as agent under a durable power of attorney under ch. 243 244, unless the agency is revoked or terminated by a court.

SB529, s. 6 Section 6. 54.10 (3) (c) 3. of the statutes is amended to read:

SB529,4,11 54.10 (3) (c) 3. Whether the proposed ward has engaged in any advance planning for financial and health care decision making that would avoid guardianship, including by executing a durable power of attorney under ch. 243 244, a power of attorney for health care, as defined in s. 155.01 (10), a trust, or a jointly held account.

SB529, s. 7 Section 7. 54.40 (4) (d) 1. of the statutes is amended to read:

SB529,4,16 54.40 (4) (d) 1. Review any power of attorney for health care under ch. 155, any durable power of attorney under ch. 243 244 executed by the proposed ward, and any other advance planning for financial and health care decision making in which the proposed ward had engaged.

SB529, s. 8 Section 8. 54.46 (3) (a) 4. of the statutes is amended to read:

SB529,4,20 54.46 (3) (a) 4. Whether the ward had executed a durable power of attorney under s. 243.07 ch. 244 or a power of attorney for health care under s. 155.05 or had engaged in other advance planning for financial and health care decision making.

SB529, s. 9 Section 9. 54.63 (1) (b) 4. of the statutes is amended to read:

SB529,4,24 54.63 (1) (b) 4. The agent under the ward's power of attorney for health care under ch. 155, if any, and the agent under the ward's durable power of attorney under ch. 243 244, if any.

SB529, s. 10 Section 10. 55.075 (4) (a) 4. of the statutes is amended to read:

SB529,5,5 55.075 (4) (a) 4. Whether the individual sought to be protectively placed or protectively served had executed a durable power of attorney for finances and property under s. 243.07 ch. 244 or a power of attorney for health care under s. 155.05 or had provided advance consent to nursing home admission or engaged in other advance planning to avoid protective placement or protective services.

SB529, s. 11 Section 11. 155.70 (4) (a) of the statutes is amended to read:

SB529,5,9 155.70 (4) (a) Nothing in this chapter may be construed to render invalid a durable power of attorney that is executed under s. 243.07, 2007 stats., prior to April 28, 1990.

SB529, s. 12 Section 12. 180.0722 (2) (a) of the statutes is amended to read:

SB529,5,15 180.0722 (2) (a) A shareholder entitled to vote at a meeting of shareholders, or to express consent or dissent in writing to any corporate action without a meeting of shareholders, may authorize another person to act for the shareholder by appointing the person as proxy. An appointment of a proxy may be in durable form as provided in s. 243.07 ch. 244.

SB529, s. 13 Section 13. 221.0519 (2) of the statutes is amended to read:

SB529,5,20 221.0519 (2) Method of appointing a proxy. A shareholder may appoint a proxy to vote or otherwise act for the shareholder by signing an appointment form, either personally or by his or her attorney-in-fact. An appointment of a proxy may be in durable form as provided in s. 243.07 244.04.

SB529, s. 14 Section 14. 243.07 of the statutes is repealed.

SB529, s. 15 Section 15. 243.10 of the statutes, as affected by 2009 Wisconsin Act 28, is repealed.

SB529, s. 16 Section 16. Chapter 244 of the statutes, as affected by 2009 Wisconsin Act 28, is created to read:

SB529,6,1 Chapter 244

SB529,6,3 Uniform power of attorney For finances and property

SB529,6,4 Subchapter I

SB529,6,5 General provisions

SB529,6,7 244.01 Short title. This chapter may be cited as the Uniform Power of Attorney for Finances and Property Act.

SB529,6,8 244.02 Definitions. In this chapter:

SB529,6,10 (1) "Agent" means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney-in-fact, or otherwise.

SB529,6,11 (2) "Domestic partner" has the meaning given in s. 770.01 (1).

SB529,6,13 (3) "Durable power of attorney" means a power of attorney that is not terminated by the principal's incapacity.

SB529,6,15 (4) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

SB529,6,16 (5) "Genuine" means free of forgery or counterfeiting.

SB529,6,17 (6) "Good faith" means honesty in fact.

SB529,6,19 (7) "Incapacity" means inability of an individual to manage property, finances, or business affairs because the individual meets one of the following criteria:

SB529,6,21 (a) Has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance.

SB529,6,22 (b) Is missing.

SB529,6,23 (c) Is detained, including incarceration in a correctional facility.

SB529,6,24 (d) Is outside the United States and unable to return.

SB529,7,4 (8) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

SB529,7,7 (9) "Power of attorney" means a writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term power of attorney is used.

SB529,7,14 (10) "Presently exercisable general power of appointment," with respect to property or a property interest subject to a power of appointment, means power exercisable at the time in question to vest absolute ownership in the principal individually, the principal's estate, the principal's creditors, or the creditors of the principal's estate. The term does not include a power exercisable in a fiduciary capacity or only by will. The term includes a power of appointment that is exercisable only when one of the following circumstances exists:

SB529,7,15 (a) The occurrence of a specified event.

SB529,7,16 (b) The satisfaction of an ascertainable standard.

SB529,7,19 (c) The passage of a specified period only after the occurrence of the specified event, the satisfaction of the ascertainable standard, or the passage of the specified period.

SB529,7,21 (11) "Principal" means an individual who grants authority to an agent in a power of attorney.

SB529,7,23 (12) "Property" means anything that may be the subject of ownership, including real or personal property, or any interest or right in that property.

SB529,7,25 (13) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

SB529,8,2 (14) "Sign" means, with present intent to authenticate or adopt a record, any of the following:

SB529,8,3 (a) To execute or adopt a tangible symbol.

SB529,8,5 (b) To attach to or logically associate with the record an electronic sound, symbol, or process.

SB529,8,9 (15) "Stocks and bonds" means stocks, bonds, mutual funds, and all other types of securities and financial instruments, whether held directly, indirectly, or in any other manner. The term does not include commodity futures contracts and call or put options on stocks or stock indexes.

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.