Finance
Instrument: Power of attorney (POA) for finances
What is it for?
The POA for finances is an alternative to guardianship that allows any person age 18 or older to appoint one agent or two or more coagents to make financial decisions on his or her behalf.
What does it do?
The POA for finances grants an agent the authority to make decisions about the principal’s property. In doing so, an agent must act in good faith, only within the scope of authority specified in the POA for finances, and in accordance with the principal’s reasonable expectations. An agent also must act loyally, avoid conflicts of interest, and act with care, competence, and diligence consistent with a fiduciary duty. An agent is not liable if the principal’s property declines as a result of the agent’s actions absent a breach of this duty. Wis. Stat. § 155.14.
The POA for finances must be accepted by third parties, unless they have a good faith reason for refusing to do so, such as actual knowledge that another person has reported to adult protective services that the agent may be abusing, neglecting, or exploiting the principal.
How does one make it?
To execute a POA for finances the principal must sign the POA instrument. Alternatively, another individual, at the principal’s direction and in the principal’s presence, may sign the principal’s name on the form. Notarization is not required, but the principal’s signature is presumed to be genuine if notarized. Wis. Stat. § 244.05.
When does it come into effect?
The POA for finances is effective immediately when executed unless the principal states a future date or event that will activate the powers expressed in this form. The later kind of POA is often called a “springing” POA because it “springs” into effect after a specific condition is met. For example, a POA for finances may become effective only after the principal has determined incapacitated by a licensed physician or psychologist. The POA may specify a person responsible for making this determination.
How long does it last?
The POA for finances generally lasts until the principal dies or revokes the instrument, or if the agent dies, becomes incapacitated, or resigns. For this reason, the POA is called “durable”: it remains in effect even after a later finding of incapacity, unless the POA expressly states otherwise.
That said, the principal may specify a period of time after which the POA for finances terminates. The POA for finances may also end if the purpose of the instrument is accomplished.
A POA executed prior to an incompetency adjudication will remain in effect unless the court states otherwise, per Wis. Stat. § 244.04.
How does one end it?
The principal may revoke and invalidate a POA for finances in the same way as an SDMA, namely, by destroying the POA instrument or directing another in the presence of the adult with a functional impairment to do so. An adult may also either state verbally in the presence of two witnesses or in a signed and dated writing that he or she wishes to revoke the POA.
What does an example look like?
The Wisconsin Department of Health Services has created a POA form consistent with Wis. Stat. § 155.30 that is available on its website.
What else should one know?
The POA for finances may not be accepted for educational decisions. See, e.g., In re: Student with a Disability, Wisc. State Educ. Agency No. LEA-13-006, 113 LRP 47193 (Apr. 3, 2013).
The POA for finances is based on the Uniform Power of Attorney Act.
Last updated April 2021
Education
No information available at this time.
Health
Instrument: Health care power of attorney (POA)
What is it for?
The health care POA is an alternative to guardianship that any person age 18 or older “of sound mind” may use to appoint a health care agent. The agent is empowered to make health care decisions on behalf of the principal if and only if the principal “has incapacity,” as determined by two licensed health care professionals. The principal may also identify an alternate agent, in the event that the health care agent is unable or unwilling to serve that role.
What does it do?
The health care POA gives priority to the agent over any other individual aside from the principal to make health care decisions. At the same time, Wis. Stat. § 155.20(5) obligates the agent to “act in good faith consistently with the desires of the principal as expressed in the [POA] instrument or as otherwise specifically directed by the principal to the health care agent at any time.”
Wis. Stat. § 155.20 expressly bars agents from consenting to inpatient commitments to treatment or care facilities. While an agent may consent to withdrawing a feeding tube from the principal, if the POA so provides, the agent may not consent to withholding orally ingested nutrition or hydration.
How does one make it?
The principal must voluntarily sign and date a writing in the presence of two witnesses, other than the agent, who are age 18 or older. Neither witness may be related to the principal by blood, marriage, adoption, or domestic partnership, or knowingly have a claim to any portion of the principal’s estate, be financially responsible for the principal’s health care, be a health care provider, or be the health care agent.
Although the principal or the agent may file the health care POA with the county register in probate, this is not required.
When does it come into effect?
The health care agent may make health care decisions only after a finding of incapacity by two physicians, or one physician and one licensed psychologist, per Wis. Stat. § 155.05. Absent this finding, the principal retains authority to make health care decisions despite having executed the health care POA.
How long does it last?
The health care POA generally lasts until the principal either dies or revokes it.
A health care POA executed prior to an incompetency adjudication will remain in effect unless the court states otherwise, per Wis. Stat. §§ 155.40 and 60.
How does one end it?
The principal may revoke and invalidate a health care POA in the same way as an SDMA, namely, by destroying the health care POA instrument or directing another in the presence of the adult with a functional impairment to do so. An adult may also either state verbally in the presence of two witnesses or in a signed and dated writing that he or she wishes to revoke the health care POA.
Per Wis. Stat. § 155.40, the agent is responsible for communicating the revocation to any health care provider for the principal that has a copy of the revoked instrument.
What does an example look like?
The Wisconsin Department of Health Services has created a health care POA form consistent with Wis. Stat. § 155.30 that is available on its website in English, Hmong, Spanish, and Vietnamese.
What else should one know?
Wis. Stat. § 155.70 prohibits requiring execution of a health care POA as a condition for receipt of health care or admission to a health care facility.
Last updated April 2021
General
Instrument: Supported decision-making agreement (SDMA)
What is it for?
An SDMA allows an adult with a “functional impairment” to retain decision-making authority while still getting assistance from a “supporter” to make those decisions. However, an SDMA does not empower a supporter to make decisions for the adult. For example, a supporter may not sign legal documents on the adult’s behalf.
What does it do?
An SDMA allows an “adult with a functional impairment” to give a “supporter” standing to assist with certain decisions. Per Wisc. Stat. § 52.10, a supporter may only help the adult understand options, responsibilities, and consequences of life decisions; help the adult to access, collect, or obtain information that is relevant to a given life decision, including medical, psychological, financial, educational, or treatment records; help the adult under such information; or help the adult communicate the adult’s decisions.
Third parties, including health care providers, shall rely on a valid SDMA unless they have “cause to believe that the adult with a functional impairment is being abused, neglected, unduly influenced, or financially exploited by the supporter. Wis. Stat. § 52.30.
Wisconsin’s SDMA statute defines “functional impairment” to include a “physical, developmental, or mental condition that substantially limits one or more of an individual’s major life activities,” which may include capacity for independent living, self-direction, self care, mobility, communication, or learning. A “functional impairment” also includes both “impairment” and “other like incapacities” as defined by Wisconsin’s guardianship statute (respectively: “a developmental disability, serious and persistent mental illness, degenerative brain disorder, or other like incapacities,” and “conditions incurred at any age that are the result of accident, organic brain damage, mental or physical disability, or continued consumption or absorption of substances, and that produce a condition that substantially impairs an individual from providing for his or her own care or custody”). Wisc. Stat. § 52.01.
How does one make it?
An adult with a functional impairment and his or her supporter must sign and date the SDMA in the presence of two or more witnesses (who must be at least 18 years old) or a notary public.
When does it come into effect?
An SDMA is effective immediately upon its signing and dating by the adult with a functional impairment, the supporter, and two witnesses or a notary.
How long does it last?
An SDMA generally lasts until it is either terminated by either party or by the terms of the SDMA itself.
Also, an SDMA may end by force of law if a county adult protective services has substantiated an allegation of neglect or abuse by a supporter, the supporter is found criminally liable for neglect or abuse, or there is a restraining order against the supporter.
How does one end it?
An adult with a functional impairment may revoke an SDMA by destroying the SDMA paper or directing another in the presence of the adult with a functional impairment to do so. An adult may also either state verbally in the presence of two witnesses or in a signed and dated writing that he or she wishes to revoke the SDMA.
What does an example look like?
The Wisconsin Department of Health Services has created an SDMA form, consistent with the template set forth in Wis. Stat. § 52.20, and published it on its website in English and Spanish. The SDMA form identifies the adult with a functional impairment and supporter, the types of decisions the adult wants assistance with, the kinds of assistance the adult wants to receive.
What else should one know?
An SDMA may not be used as evidence of incapacity or incompetency. Nor does an SDMA prevent an adult from acting independently of the agreement. Wis. Stat. § 52.03
Wisc. Stat. § 115.807(4) obligates school districts to inform students and their parents of supported decision-making and other alternatives to guardianship.
Last updated April 2021