244.01 History
History: 2009 a. 319.
244.01 Annotation
Procedural Gray Areas: New POA for Finances. Beermann & Johnson. Wis. Law. Oct. 2011.
244.02
244.02
Definitions. In this chapter:
244.02(1)
(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.
244.02(3)
(3) “Durable power of attorney" means a power of attorney that is not terminated by the principal's incapacity.
244.02(4)
(4) “Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
244.02(5)
(5) “Genuine" means free of forgery or counterfeiting.
244.02(6)
(6) “Good faith" means honesty in fact.
244.02(7)
(7) “Incapacity" means inability of an individual to manage property, finances, or business affairs because the individual meets one of the following criteria:
244.02(7)(a)
(a) Has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance.
244.02(7)(c)
(c) Is detained, including incarceration in a correctional facility.
244.02(7)(d)
(d) Is outside the United States and unable to return.
244.02(8)
(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.
244.02(9)
(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.
244.02(10)
(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:
244.02(10)(c)
(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.
244.02(11)
(11) “Principal" means an individual who grants authority to an agent in a power of attorney.
244.02(12)
(12) “Property" means anything that may be the subject of ownership, including real or personal property, digital property, as defined in s.
711.03 (10), or any interest or right in that property.
244.02(13)
(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.
244.02(14)
(14) “Sign" means, with present intent to authenticate or adopt a record, any of the following:
244.02(14)(b)
(b) To attach to or logically associate with the record an electronic sound, symbol, or process.
244.02(15)
(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.
244.02 History
History: 2009 a. 319;
2015 a. 300.
244.03
244.03
Applicability. This chapter applies to all powers of attorney except for the following:
244.03(1)
(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.
244.03(2)
(2) A power to make health-care decisions.
244.03(3)
(3) A proxy or other delegation to exercise voting rights or management rights with respect to an entity.
244.03(4)
(4) A power created on a form prescribed by a government or governmental subdivision, agency, or instrumentality for a governmental purpose.
244.03 History
History: 2009 a. 319.
244.03 Annotation
Offering Clarity and Guidance: New Uniform Power of Attorney for Finances and Property. Collins, Hatch, & Wilcox. Wis. Law. June 2010.
244.04
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.
244.04 History
History: 2009 a. 319.
244.05
244.05
Execution of power of attorney. 244.05(1)(1)
To execute a power of attorney, the principal must sign the power of attorney, or an individual 18 years of age or older at the express direction and in the physical presence of the principal must sign the principal's name on the power of attorney.
244.05(2)
(2) A signature of the principal, or the signature of an individual signing on behalf 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 ch.
140 to take acknowledgments.
244.05(3)
(3) A signature of the principal, or the signature of an individual signing on behalf of the principal, on a power of attorney is presumed to be genuine if the signing is witnessed by 2 witnesses via simultaneous remote appearance by 2-way, real-time audiovisual communication technology if all of the following conditions are satisfied:
244.05(3)(a)
(a) The signing is supervised by an attorney in good standing licensed by this state. The supervising attorney may serve as one of the remote witnesses.
244.05(3)(b)
(b) The principal attests to being physically located in this state during the 2-way, real-time audiovisual communication.
244.05(3)(c)
(c) Each remote witness attests to being physically located in this state during the 2-way, real-time audiovisual communication.
244.05(3)(d)
(d) The principal and each of the remote witnesses identify themselves. If the principal and remote witnesses are not personally known to each other and to the supervising attorney, the principal and each of the remote witnesses display photo identification.
244.05(3)(e)
(e) The principal identifies anyone else present in the same physical location as the principal and, if possible, the principal makes a visual sweep of the principal's physical surroundings so that the supervising attorney and each remote witness can confirm the presence of any other person.
244.05(3)(f)
(f) The principal displays the power of attorney, confirms the total number of pages and the page number of the page on which the principal's signature will be affixed, and declares to the remote witnesses and the supervising attorney all of the following:
244.05(3)(f)2.
2. That the document is the principal's power of attorney.
244.05(3)(f)3.
3. That the document is being executed as a voluntary act.
244.05(3)(g)
(g) The principal, or another individual 18 years of age or older at the express direction and in the physical presence of the principal, signs the power of attorney in a manner that allows each of the remote witnesses and the supervising attorney to see the execution.
244.05(3)(h)
(h) The audiovisual communication technology used 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 principal, a remote witness, 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.
244.05(3)(i)
(i) The power of attorney indicates that it is being executed pursuant to this section.
244.05(3)(j)1.
1. The principal, or another person at the direction of the principal, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original power of attorney to the supervising attorney within a reasonable time after execution. The supervising attorney then personally delivers or transmits by U.S. mail or commercial courier service the entire signed original power of attorney to the remote witnesses within a reasonable time. The first remote witness to receive the original power of attorney signs the original power of attorney as a witness and forwards the entire signed original power of attorney by personal delivery or U.S. mail or commercial courier service within a reasonable time to the 2nd remote witness, who signs it as a witness and forwards the entire signed original power of attorney by personal delivery or U.S. mail or commercial courier service within a reasonable time to the supervising attorney.
244.05(3)(j)2.
2. The principal, or another person at the direction of the principal, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original power of attorney to the supervising attorney within a reasonable time after execution and transmits by facsimile or electronic means a legible copy of the entire signed power of attorney directly to each remote witness within a reasonable time after execution. Each remote witness then signs the transmitted copy of the power of attorney as a witness and personally delivers or transmits by U.S. mail or commercial courier service the entire signed copy of the power of attorney to the supervising attorney within a reasonable time after witnessing. The signed original and signed copies together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving the signed original and signed copies, compiles the signed original and signed copies into one document by attaching the signature pages of each remote witness to the original signed by or on behalf of the principal, in which case the compiled document shall constitute the original.
244.05(3)(j)3.
3. The principal and each of the remote witnesses sign identical copies of the original. The principal, or another person at the direction of the principal, and each of the remote witnesses personally deliver or transmit by U.S. mail or commercial courier service the signed originals to the supervising attorney within a reasonable time after execution. All of the signed originals together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving all signed originals, compiles the originals into one document by attaching the signature pages of each remote witness to the original signed by or on behalf of the principal, in which case the compiled document shall constitute the original.
244.05(3)(k)
(k) The supervising attorney completes an affidavit of compliance that contains all of the following information:
244.05(3)(k)2.
2. The name and residential or business address of each remote witness.
244.05(3)(k)3.
3. The address within this state where the principal was physically located at the time the principal signed the power of attorney.
244.05(3)(k)4.
4. The address within this state where each remote witness was physically located at the time the remote witness witnessed the principal's execution of the power of attorney.
244.05(3)(k)5.
5. A statement that the principal and remote witnesses were all known to each other and the supervising attorney or a description of the form of photo identification used to confirm the identity of the principal and each remote witness.
244.05(3)(k)6.
6. Confirmation that the principal declared that the principal is 18 years of age or older, that the document is the principal's power of attorney, and that the document was being executed as the principal's voluntary act.
244.05(3)(k)7.
7. Confirmation that each of the remote witnesses and the supervising attorney were able to see the principal, or another individual 18 years of age or older at the express direction and in the physical presence of the principal, sign, and that the principal appeared to be 18 years of age or older and acting voluntarily.
244.05(3)(k)8.
8. A description of the audiovisual technology used for the signing process.
244.05(3)(k)9.
9. If the power of attorney was not signed in counterpart, a description of the method used to forward the power of attorney to each remote witness for signing and to the supervising attorney after signing.
244.05(3)(k)10.
10. If the power of attorney was signed in counterpart, a description of the method used to forward each counterpart to the supervising attorney and, if applicable, how and when the supervising attorney physically compiled the signed paper counterparts into a single document containing the power of attorney, the signature of the principal, and the signatures of the remote witnesses.
244.05(3)(k)11.
11. The name, state bar number, and business or residential address of the supervising attorney.
244.05(3)(k)12.
12. Any other information that the supervising attorney considers to be material with respect to the principal's capacity to sign a valid power of attorney, the principal's and witnesses' compliance with this section, or any other information that the supervising attorney deems relevant to the execution of the power of attorney.
244.05(3)(L)
(L) The affidavit of compliance is attached to the power of attorney.
244.05(3)(m)
(m) An affidavit of compliance described in this subsection shall be substantially in the following form:
AFFIDAVIT OF COMPLIANCE
State of ....
County of ....
The undersigned, being first duly sworn under oath, states as follows:
This Affidavit of Compliance is executed pursuant to Wis. Stat. §
244.05 to document the execution of the power of attorney of [name of principal] via remote appearance by 2-way, real-time audiovisual communication technology on [date].
1. The name and residential address of the principal is ....
2. The name and [residential or business] address of remote witness 1 is ....
3. The name and [residential or business] address of remote witness 2 is ....
4. The address within the state of Wisconsin where the principal was physically located at the time the principal signed the power of attorney is ....
5. The address within the state of Wisconsin where remote witness 1 was physically located at the time the remote witness witnessed the principal's execution of the power of attorney is ....
6. The address within the state of Wisconsin where remote witness 2 was physically located at the time the remote witness witnessed the principal's execution of the power of attorney is ....
7. The principal and remote witnesses were all known to each other and to the supervising attorney. - OR - The principal and remote witnesses were not all known to each other and to the supervising attorney. Each produced the following form of photo identification to confirm his or her identity:
....
8. The principal declared that the principal is 18 years of age or older, that the document is the principal's power of attorney, and that the document was being executed as the principal's voluntary act.
9. Each of the remote witnesses and the supervising attorney were able to see the principal, or another individual 18 years of age or older at the express direction and in the physical presence of the principal, sign. The principal appeared to be 18 years of age or older and acting voluntarily.
10. The audiovisual technology used for the signing process was ....
11. The power of attorney was not signed in counterpart. The following methods were used to forward the power of attorney to each remote witness for signing and to the supervising attorney after signing. - OR - The power of attorney was signed in counterpart. The following methods were used to forward each counterpart to the supervising attorney. [If applicable] - The supervising attorney physically compiled the signed paper counterparts into a single document containing the power of attorney, the signature of the principal, and the signatures of the remote witnesses on [date] by [e.g., attaching page 7 from each counterpart signed by a remote witness to the back of the power of attorney signed by the principal].
