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