AB985: Bill Text

LRB-5238/1

KMS:amn

2023 - 2024 LEGISLATURE

2023 Assembly BILL 985

January 25, 2024 - Introduced by Representatives Tusler, Baldeh, Behnke, Doyle, Kitchens, O'Connor, Ratcliff, Rettinger and Subeck, cosponsored by Senators Ballweg and Feyen. Referred to Committee on Family Law.

AB985,1,4 An Act to amend 154.30 (8) (d) 2.; to repeal and recreate 244.05; and to create 140.147, 154.03 (1) (e), 154.03 (3), 154.30 (8m), 155.10 (3) and 853.03 (2) (c) of the statutes; relating to: electronic and remote witnessing and notarization of estate planning documents.

Analysis by the Legislative Reference Bureau

Under current law, an individual executing an estate planning document that requires a notarial act must appear personally before a notarial officer. In addition, current law requires an individual executing a declaration to health care professionals, an authorization for final disposition, or a power of attorney for health care to sign the document in the presence of two witnesses, in addition to certain other requirements. Current law also requires an individual executing a will to sign the will, acknowledge the will, or acknowledge the individual's signature on the will in the conscious presence of two witnesses.

This bill makes several changes to the notarization and witnessing requirements for these documents. Specifically, under the bill, a declaration of health care professionals may be witnessed only by individuals who are at least 18 years of age. In addition, under the bill, an individual may execute a power of attorney for finances and property by signing the document before two witnesses via two-way, real-time audiovisual communication according to the requirements detailed below, whereas, under current law, an individual may execute a power of attorney for finances and property only by acknowledging the document before a notarial officer. Additionally, under current law, if an individual executing an authorization for final disposition is physically unable to sign the authorization, another individual may sign the authorization on his or her behalf; the bill specifies that, in these situations, the signing individual must be at least 18 years of age and must sign in the physical presence of the individual executing the authorization.

The bill authorizes remote notarization of an estate planning document and remote witnessing of a declaration to health care professionals, an authorization for final disposition, a power of attorney for health care, a power of attorney for finances and property, or a will via two-way, real-time audiovisual communication if a remotely located individual, declarant, person executing a power of attorney for health care (principal), or testator, or an individual signing on that person's behalf, signs the document in accordance with the following requirements:

1. The signing is supervised by an attorney.

2. The remotely located individual, declarant, principal, or testator is physically located in this state during the two-way, real-time audiovisual communication.

3. Each notary public or remote witness, as applicable, attests to being physically located in this state during the two-way, real-time audiovisual communication.

4. The remotely located individual, declarant, principal, or testator and each remote witness, as applicable, is positively identified.

5. The remotely located individual, declarant, principal, or testator identifies anyone else present in the same physical location as the remotely located individual, declarant, principal, or testator.

6. The remotely located individual, declarant, principal, or testator displays the document; confirms the number of pages in the document and the page number on which the signature is to be affixed; and declares to the notary public or remote witnesses, as applicable, and the supervising attorney that the remotely located individual, declarant, principal, or testator is 18 years of age or older and that the document is being executed as a voluntary act.

7. The remotely located individual, declarant, principal, or testator, or another individual 18 years of age or older authorized to sign on that person's behalf in that person's physical presence, signs the document in a manner that allows the notary public or remote witnesses, as applicable, and supervising attorney to see the signing.

8. The audiovisual communication technology allows communication by which a person is able to see, hear, and communicate in an interactive way with another person in real time using electronic means, except that if the remotely located individual, declarant, principal, or testator, the notary public or remote witnesses, as applicable, or the supervising attorney has an impairment that affects hearing, sight, or speech, assistive technology or learned skills may be substituted for audio or visual if it allows that person to actively participate in the signing in real time.

9. The document indicates that it is being executed pursuant to these requirements.

10. The document is signed by the remotely located individual, declarant, principal, or testator and the notary or remote witnesses, as applicable, and delivered to the supervising attorney.

11. The supervising attorney completes and attaches to the document an affidavit of compliance that contains certain information and serves as conclusive evidence that the document was executed in compliance with the requirements under the bill.

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

AB985,1 Section 1 . 140.147 of the statutes is created to read:

AB985,3,3 140.147 Notarial act performed for remote execution of estate planning documents. (1) In this section:

AB985,3,4 (a) “Estate planning document” means any of the following:

AB985,3,5 1. A will or a codicil.

AB985,3,8 2. A declaration of trust or other document creating a trust as provided in s. 701.0401 or an amendment to a declaration of trust or other document creating a trust.

AB985,3,9 3. A certification of trust as provided in s. 701.1013.

AB985,3,10 4. A power of attorney for finances and property.

AB985,3,11 5. A power of attorney for health care.

AB985,3,13 6. A marital property agreement or an amendment to a marital property agreement.

AB985,3,15 7. A written instrument evidencing a nonprobate transfer pursuant to s. 705.10, 705.15, 705.18, or 766.58 (3) (f).

AB985,3,16 8. A declaration to health care professionals.

AB985,3,17 9. An authorization for final disposition.

AB985,3,18 10. An authorization for use and disclosure of protected health information.

AB985,4,1 11. An instrument of disclaimer under s. 854.13.

AB985,4,2 12. An instrument exercising a power of appointment under ch. 702.

AB985,4,5 (b) “Remotely located individual” means an individual who is not in the physical presence of the notary public who performs the notarial act pursuant to this section.

AB985,4,8 (c) “Sign” means, with respect to a remotely located individual, the execution of an estate planning document that is required or intended to be executed in the presence of a notary public.

AB985,4,11 (2) (a) An estate planning document may not be denied legal effect or enforceability relating to a transaction solely because a notarial act was performed in compliance with this section.

AB985,4,14 (b) Except as provided in par. (a), this section shall not apply to, or impact the legal effect or enforceability of, any electronic records or electronic signatures governed by ch. 137.

AB985,4,18 (3) For purposes of signing an estate planning document, a remotely located individual may comply with s. 140.06 by appearing before a notary public via 2-way, real-time audiovisual communication technology if all of the following requirements are satisfied:

AB985,4,20 (a) The signing is supervised by an attorney in good standing licensed to practice law in this state. The supervising attorney may serve as the notary public.

AB985,4,22 (b) The remotely located individual attests to being physically located in this state during the 2-way, real-time audiovisual communication.

AB985,4,24 (c) The notary public attests to being physically located in this state during the 2-way, real-time audiovisual communication.

AB985,5,5 (d) The remotely located individual positively confirms the remotely located individual's identity. If the remotely located individual is not personally known to the notary public and the supervising attorney, the remotely located individual shall provide satisfactory evidence of the remotely located individual's identity as provided in s. 140.07.

AB985,5,10 (e) The remotely located individual identifies anyone else present in the same physical location as the remotely located individual. If possible, the remotely located individual shall make a visual sweep of the remotely located individual's physical surroundings so that the notary public and the supervising attorney can confirm the presence of any other persons.

AB985,5,16 (f) The remotely located individual displays the estate planning document, confirms the total number of pages and the page number on which the remotely located individual's signature is to be affixed, and declares to the notary public and the supervising attorney that the remotely located individual is 18 years of age or older, that the document is the remotely located individual's estate planning document, and that the document is being executed as a voluntary act.

AB985,5,23 (g) The remotely located individual, or another individual 18 years of age or older authorized to sign on behalf of the remotely located individual at the express direction and in the physical presence of the remotely located individual, signs the estate planning document in a manner that allows the notary public and the supervising attorney to see the signing. If the estate planning document is signed by someone on behalf of the remotely located individual, the signing shall comply with s. 140.09.