Various statute sections in ch.
244, Stats., relating to uniform power of attorney.
Statutory authority
Explanation of agency authority
By statute, the ETF Secretary is expressly authorized, with appropriate board approval, to promulgate rules required for the efficient administration of any benefit plan established in ch.
40 of the Wisconsin statutes. Each state agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency if the agency considers it necessary to effectuate the purpose of the statute.
Related statute(s) or rule(s)
There are no other rules that clarify how ETF will administer Chapter
40, Stats., benefits with respect to power of attorney.
2009 Wisconsin Act 319 contains changes to the statutes relating to power of attorney for property and finances.
Plain language analysis
2009 Wisconsin Act 319 updates provisions related to the uniform power of attorney for property and finances. Rule changes are necessary to bring ETF's treatment of power of attorney documents into harmony with the new statutes, including:
A rule clarifying how the department will process conflicting transaction requests from co-agents when the principal has granted authority to execute such transactions to multiple agents.
A rule specifying how the department will implement the 10-day deadline for rejecting power of attorney documents and requests provided in
2009 Wisconsin Act 319.
A rule specifying the department's treatment of an agent's request to execute a transaction when the power of attorney document is incomplete or certification is required.
A rule clarifying that a power of attorney does not automatically terminate when a domestic partnership established under Chapter
40, Stats., is terminated.
Summary of, and comparison with, existing or proposed federal regulations
There are no existing federal regulations that specifically address how states process and administer power of attorney.
Comparison with rules in adjacent states
All states except Louisiana have adopted the Uniform Power of Attorney Act, although each state may incorporate additional provisions into their own power of attorney laws. If a power of attorney was executed in a state other than Wisconsin, the department would abide by that state's laws with respect to the authority and powers granted in the power of attorney document.
Summary of factual data and analytical methodologies
2009 Wisconsin Act 319 amended Wisconsin's statutes governing uniform power of attorney for finances and property. The proposed rule change is intended to bring ETF's power of attorney rule into harmony with the amended statutes.
Analysis and supporting documents used in determination of effect on small businesses
The rule does not have an effect on small businesses because private employers and their employees do not participate in, and are not covered by, the Wisconsin Retirement System.
Effect On Small Business
There is no effect on small business.
Fiscal Estimate
The rule will have a minimal fiscal effect, in that it will require minor changes to ETF's procedures with respect to reviewing power of attorney documents. Any costs are anticipated to be insignificant, and the Department can absorb these costs within the existing base budget. The rule will not create any additional fiscal impact on any county, city, village, town, school district, technical college district, or sewerage districts. The rule will not create any additional fiscal impact on the state for the current biennium. The rule will not have any fiscal impact on the private sector.
Agency Contact Person
Linda Owen, Policy Analyst, Department of Employee Trust Funds, 801 W Badger Rd, Madison, WI 53713-7931, P.O. Box 7931 (use ZIP Code 53707 for PO Box); Phone: 608-267-2847; e-mail:
linda.owen@etf.state.wi.us
Notice of Hearing
Public Defender Board
NOTICE IS HEREBY GIVEN that the State of Wisconsin Public Defender Board (SPD) announces that it will hold a public hearing on the revision of Chapter
PD 3, Indigency Criteria, relating to the determination of eligibility for the assignment of publicly appointed counsel.
Hearing Information
The State Public Defender will hold a public hearing at the time and location below:
Date and Time:
|
Location:
|
January 5, 2011
Wednesday
9:30am-11:30
|
SPD Administrative Office
Banoul Conference Room
315 N. Henry St., 2nd Floor
Madison, WI 53703
|
Handicap accessibility is in the rear of the building. If you require communication accommodation at the hearing, please call Kathy Pakes, (608) 261-0087, at least 10 days prior to the hearing date.
Appearances at the Hearing and Submittal of Written Comments
Interested persons are invited to attend the hearing and comment on the rule. Persons appearing may make an oral presentation and are requested to submit their comments in writing. Written comments on the rule will be accepted into the record and receive the same consideration as testimony presented at the hearing if they are received by
December 13 at 9:30. Written comments should be addressed to: Kathy Pakes, SPD, PO Box 7923, Madison, WI 53707-7923, or by email:
pakesk@opd.wi.gov.
Copies of Proposed Rule
You may contact Kathy Pakes at
pakesk@opd.wi.gov or by telephone at (608) 266-0087 to request a copy (at no cost) of the rule and fiscal note be sent to you by U.S. mail. Copies of the rule and fiscal note will also be available, at no cost, at the hearing.
Analysis Prepared by the Public Defender Board
Statute(s) interpreted
Statutory authority
Explanation of agency authority
The State Public Defender's Office (SPD) provides constitutionally-mandated legal representation to persons who meet financial eligibility standards. Under the current eligibility standards, which have not been updated since 1987, a person charged with a felony offense, grossing $290 per week (working 40 hours a week at minimum wage of $7.25 per hour), with two children, assets of $300, and a car worth $2,000, does not qualify for the State Public Defender.
Those who do not qualify for State Public Defender Representation and cannot afford an attorney are provided an attorney, at county expense. Since 1987, as the cost of living has increased, the number of persons who do not meet the SPD eligibility standards, and who are unable to afford counsel, has increased. Wisconsin counties reported spending nearly $7.6 million in 2008 to appoint counsel for these indigent individuals.
Recognizing the burden to the counties and need to revise the financial eligibility criteria,
2009 Wisconsin Act 164, published March 29, 2010, mandated that financial eligibility standards for public defender representation be consistent with income guidelines of Wisconsin Works (W2). To carry out these changes, Act 164 directs the Wisconsin State Public Defender Board to promulgate rules regarding the revised determination of indigency. In promulgating these rules Act 164 directs the SPD to consider the costs of effective representation for the type of case in which a person seeks representation, and to consider a person's assets in the manner described in s.
49.145 Stats., (Wisconsin Works).
Related statute(s) or rule(s)
None.
Plain language analysis
Tying eligibility for representation to W2 (sec. 49.145 (3) (a) Stats.) increases the number of clients served by the State Public Defender Agency.
An increase in the number of persons who qualify for representation by the State Public Defender has a corresponding decrease in the costs to counties. This is because counties are required to provide counsel for those individuals who do not qualify for state public defender representation and cannot afford to retain an attorney. Act 164 shifts, to a large extent, the responsibility of providing representation for the “working poor" from the counties to the State.
Summary of, and comparison with, existing or proposed federal regulation
There are no existing or proposed federal regulations that address the activities of the proposed rules.
Comparison with rules in adjacent states
Iowa:
Iowa Code sec. 815.9
Eligibility for public defender representation is tied to the United State poverty level as defined by the most recently revised poverty income guidelines published by the United States department of health and human services. Generally, a person with an income level at or below 125% of the federal poverty guidelines will qualify for public defender representation. Persons with an income of 125% to 200% of the federal poverty guidelines may qualify for public defender representation if the court finds not appointing counsel would cause the person substantial hardship.
Illinois:
Does not have a statewide public defender system. The counties bear the cost of representation. Indigency determinations are made on a county by county basis.
Michigan:
Does not have a statewide public defender system. The counties bear the cost of representation. Indigency determinations are made on a county by county basis.
Minnesota:
In Minnesota a defendant is financially unable to obtain counsel if the defendant, or a defendant's dependent (residing in the same household), receives means-tested governmental benefits, or, considering the defendant's liquid assets and current income, the defendant would be unable to pay the reasonable costs charged by a private attorney.
Upon disposition of the case, the defendant must pay a $28 co-payment, unless the court waives the co-payment. The statute does not indicate when a court should exercise its discretion to waive the co-payment. In 2003, the Minnesota Court of Appeals held that a defendant is exempt from the co-payment and the court must waive the co-payment when a defendant is indigent or when the co-payment would cause manifest hardship on a defendant.
Summary of factual data and analytical methodologies
Act 164 directs the SPD to consider the costs of effective representation for the type of case in which a person seeks representation, and to consider a person's assets in the manner described in s.
49.145, Stats., (Wisconsin Works).
In determining the estimated cost of counsel the SPD looked to the State Bar of Wisconsin 2008 “Economics of Law Practice in Wisconsin".
Methodology used by state bar:
The Wisconsin State Bar, along with a consulting agency, and with input from members representing various practice areas developed a questionnaire designed to determine the cost of counsel in various types of cases. The questionnaire was mailed to a geographically stratified random sample of 6,160 active members. Questionnaires and reply envelopes were not coded in any way to ensure confidentiality. A follow-up reminder postcard was mailed to all members of the original sample with an email reminder. The response deadline was June 6, 2008, and questionnaires received as of June 12, 2008 were included in the analysis. A total of 1,024 total usable questionnaires were returned by members, for a 17 percent overall response rate: including 618 from private practitioners, 257 from government or public service attorneys, and 102 from corporate/in-house counsels. The response rate is what would be expected from a busy, professional audience when no monetary incentive is included and no follow-up mailing of the questionnaire is done. All usable questionnaires were audited, data entered and analyzed by Gene Kroupa & Associates, a Madison based marketing research firm that has assisted the State Bar with other projects. The questionnaire was designed so that all attorneys were to answer Section 1, private practitioners were to answer Section II, government attorneys were to answer Section III, and corporate/in-house counsels were to answer Section IV. The results for each section are based only on those who were instructed to answer that particular section. The analysis focused on differences related to practice setting, location, size, and respondent demographics.
Analysis and supporting documents used in determination of effect on small business or in preparation of economic impact report
N/A
Effect on Small Business
None
Fiscal Estimate
State fiscal effect
Increase Costs - Not possible to absorb within agency's budget.
Local fiscal effect
Decrease Costs – Mandatory.
Types of local government units affected
Counties.
Fund sources affected affected
GPR.
Assumptions used in arriving at fiscal estimate
The State Public Defender (SPD) is statutorily authorized and required to appoint attorneys to represent indigent defendants in criminal proceedings. The SPD plays a major role in ensuring that the Wisconsin justice system complies with the right to counsel provided by both the state and federal constitutions. Any legislation that creates a new criminal offense or expands the definition of an existing criminal offense has the potential to increase SPD costs.
Although this bill neither creates new criminal offenses, nor changes penalties, it would increase the number of SPD cases by updating the SPD financial eligibility criteria. These criteria have remained the same, without adjustments for inflation, since 1987, with the consequence that many applicants of low income (below the federal poverty level) do not presently qualify for SPD representation.
