Chapter 244

244.16(1)(h) (h) A governmental agency having regulatory authority to protect the welfare of the principal.

244.16(1)(i) (i) The principal’s caregiver or another person that demonstrates sufficient interest in the principal’s welfare.

244.16(1)(j) (j) A person asked to accept the power of attorney.

244.16(2) (2) Upon motion by the principal, the court shall dismiss a petition filed under this section, unless the court finds that the principal lacks capacity to revoke the agent’s authority or the power of attorney.

244.16 History History: 2009 a. 319.

244.16 Annotation The relief granted under sub. (1) must fit the purpose of the action; it is not a broad invitation to the court to wade into the private attorney-client arrangements of the parties unless it is within the realm of construing a power of attorney or reviewing the conduct of an agent. The circuit court exceeded its authority under sub. (1) because the court’s order limiting attorneys’ fees was not aimed at remedying the attorney-in-fact’s actions as attorney-in-fact. Kelly v. Brown, 2016 WI App 31, 368 Wis. 2d 353, 879 N.W.2d 127, 15-0777.

244.17 244.17 Agent’s liability. An agent who violates this chapter is liable to the principal or the principal’s successors in interest for the amount required to do all of the following:

244.17(1) (1) Restore the value of the principal’s property to what it would have been had the violation not occurred.

244.17(2) (2) Reimburse the principal or the principal’s successors in interest for the attorney fees and costs paid on the agent’s behalf.

244.17 History History: 2009 a. 319.

244.18 244.18 Agent’s resignation; notice. Unless the power of attorney provides a different method for an agent’s resignation, an agent may resign by giving notice to the principal and, if the principal is incapacitated, to any of the following:

244.18(1) (1) To the guardian, if one has been appointed for the principal, and a coagent or successor agent.

244.18(2) (2) If there is no person described in sub. (1), to any of the following:

244.18(2)(a) (a) The principal’s caregiver.

244.18(2)(b) (b) Another person reasonably believed by the agent to have sufficient interest in the principal’s welfare.

244.18(2)(c) (c) A governmental agency having regulatory authority to protect the welfare of the principal.

244.18 History History: 2009 a. 319.

244.19 244.19 Protection of persons that accept and rely upon an acknowledged power of attorney.

244.19(1) (1) For purposes of this section and s. 244.20, “acknowledged” means the taking of an acknowledgment before a notarial officer authorized to take acknowledgements under ch. 140.

244.19(2) (2) A person that in good faith accepts an acknowledged power of attorney without actual knowledge that the signature is not genuine may rely upon the presumption under s. 244.05 that the signature is genuine.

244.19(3) (3) 

244.19(3)(a) (a) A person that in good faith accepts an acknowledged power of attorney without actual knowledge of any of the following may act as provided in par. (b):

244.19(3)(a)1. 1. That the power of attorney is void, invalid, or terminated.

244.19(3)(a)2. 2. That the purported agent’s authority is void, invalid, or terminated.

244.19(3)(a)3. 3. That the agent is exceeding or improperly exercising the agent’s authority.

244.19(3)(b) (b) A person described in par. (a) may rely upon the power of attorney as if the power of attorney were genuine, valid, and still in effect, the agent’s authority were genuine, valid, and still in effect, and the agent had not exceeded and had properly exercised the authority.

244.19(4) (4) A person who is asked to accept an acknowledged power of attorney may request and rely upon, without further investigation, all of the following:

244.19(4)(a) (a) An agent’s certification under penalty of perjury of any factual matter concerning the principal, agent, or power of attorney.

244.19(4)(b) (b) An English translation of the power of attorney if the power of attorney contains, in whole or in part, language other than English.

244.19(4)(c) (c) An opinion of counsel as to any matter of law concerning the power of attorney if the person making the request provides in a writing or other record the reason for the request.

244.19(5) (5) An English translation or an opinion of counsel requested under this section must be provided at the principal’s expense.

244.19(6) (6) For purposes of this section, a person that conducts activities through employees is without actual knowledge of a fact relating to a power of attorney, a principal, or an agent if the employee conducting the transaction involving the power of attorney is without actual knowledge of the fact.

244.19 History History: 2009 a. 319; 2019 a. 125.

244.20 244.20 Refusal to accept acknowledged power of attorney.

244.20(1) (1) A person may, in good faith, refuse to accept an acknowledged power of attorney within 10 business days of presentment if any of the following applies:

244.20(1)(a) (a) The person is not otherwise required to engage in a transaction with the principal in the same circumstances.

244.20(1)(b) (b) Engaging in a transaction with the agent or the principal in the same circumstances would be inconsistent with federal or state law.

244.20(1)(c) (c) The person has actual knowledge of the termination of the agent’s authority or of the power of attorney before exercise of the power of attorney.

244.20(1)(d) (d) A request for a certification, a translation, or an opinion of counsel under s. 244.19 (4) is refused.

244.20(1)(e) (e) The person believes that the power of attorney is not valid, that the agent does not have the authority to perform the act requested, or that the person presenting the power of attorney is not the agent named in the power of attorney, whether or not a certification, a translation, or an opinion of counsel under s. 244.19 (4) has been requested or provided.

244.20(1)(f) (f) The person makes, or has actual knowledge that another person has made, a report to the designated adult at risk or elder adult at risk agency, or to a law enforcement agency, stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent.

244.20(1)(g) (g) The person brought, or has actual knowledge that another person has brought, an action under s. 244.16 for construction of a power of attorney or review of the agent’s conduct.

244.20(1)(h) (h) The power of attorney becomes effective upon the occurrence of an event or contingency, and neither a certification nor evidence of the occurrence of the event or contingency is presented to the person being asked to accept the power of attorney.

244.20(1)(i) (i) The person has any other reasonable belief that the power of attorney is illegal or unenforceable and should be refused.

244.20(2) (2) A person may not refuse to accept an acknowledged power of attorney if any of the following applies:

244.20(2)(a) (a) The person’s reason for refusal is based exclusively on the date the power of attorney was executed.

244.20(2)(b) (b) The person’s reason for refusal is based exclusively on a mandate that an additional or different power of attorney form must be used.

244.20(2)(c) (c) The person has no good faith basis for refusal under sub. (1).

244.20(3) (3) If a person requests a certification, a translation, or an opinion of counsel under s. 244.19 (4), the person shall accept the power of attorney no later than 5 business days after receipt of the certification, translation, or opinion of counsel, provided that there is no other good faith reason to refuse under sub. (1).

244.20(4) (4) It is not a refusal to accept an acknowledged power of attorney if any of the following applies:

244.20(4)(a) (a) The person requests but does not require that an additional or different power of attorney form be used.

244.20(4)(b) (b) The person has requested but has not received a certification, a translation, or an opinion of counsel under s. 244.19 (4).

244.20(5) (5) If a person refuses to accept an acknowledged power of attorney in violation of this section, the person requesting the acceptance may request that a court order all of the following:

244.20(5)(a) (a) Acceptance of the power of attorney.

244.20(5)(b) (b) In any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney, payment of reasonable attorney fees, notwithstanding s. 814.04 (1), and costs by the person who refuses to accept the power of attorney.

244.20(6) (6) If a court determines that a proceeding to mandate acceptance of an acknowledged power of attorney was brought other than in good faith, the court may award reasonable attorney fees and costs to the prevailing party.

244.20 History History: 2009 a. 319.

244.21 244.21 Laws applicable to financial institutions and entities. This chapter does not supersede any other law applicable to financial institutions or insurance companies, and the other law controls if in conflict with this chapter.

244.21 History History: 2009 a. 319.

subch. II of ch. 244 SUBCHAPTER II

AUTHORITY

244.41 244.41 Authority that requires specific grant, grant of general authority.

244.41(1) (1) An agent under a power of attorney may do any of the following on behalf of the principal or with the principal’s property only if the power of attorney expressly grants the agent the authority and the exercise of that authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject:

244.41(1)(a) (a) Create, amend, revoke, or terminate an inter vivos trust.

244.41(1)(b) (b) Make a gift.

244.41(1)(c) (c) Create or change rights of survivorship.

244.41(1)(d) (d) Create or change a beneficiary designation.

244.41(1)(e) (e) Delegate authority granted under the power of attorney.

244.41(1)(f) (f) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan.

244.41(1)(g) (g) Exercise fiduciary powers that the principal has authority to delegate.

244.41(1)(h) (h) Disclaim property, including a power of appointment.

244.41(1)(i) (i) Access the content of an electronic communication, as defined in s. 711.03 (6), sent or received by the principal.

244.41(2) (2) Notwithstanding a grant of authority to do an act described in sub. (1), unless the power of attorney otherwise provides, an agent who is not a spouse or domestic partner of the principal, may not do any of the following:

244.41(2)(a) (a) Exercise authority under a power of attorney to create in the agent an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise.

244.41(2)(b) (b) Exercise authority under a power of attorney to create in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise.

244.41(3) (3) Subject to subs. (1), (2), (4), and (5), if a power of attorney grants to an agent the authority to do all acts that a principal could do, the agent has the general authority described in ss. 244.44 to 244.56.

244.41(4) (4) Unless the power of attorney otherwise provides, a grant of authority to make a gift is subject to s. 244.57.

244.41(5) (5) Subject to subs. (1), (2), and (4), if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.

244.41(6) (6) Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed or acquires later, whether or not the property is located in this state and whether or not the authority is exercised or the power of attorney is executed in this state.

244.41(7) (7) An act performed by an agent pursuant to a power of attorney has the same effect and inures to the benefit of and binds the principal and the principal’s successors in interest as if the principal had performed the act.

244.41 History History: 2009 a. 319; 2015 a. 300.

244.41 Annotation The Face of Elder Financial Exploitation. Johnson, Fioretti, & Trecartin. Wis. Law. Mar. 2020.

244.42 244.42 Incorporation of authority.

244.42(1) (1) An agent has the authority described in this subchapter if the power of attorney refers to general authority as indicated by section titles for ss. 244.44 to 244.56 or cites the section in which the authority is described.

244.42(2) (2) A reference in a power of attorney to general authority with respect to the descriptive term for a subject in ss. 244.44 to 244.56 or a citation to any of ss. 244.44 to 244.56 incorporates the entire section as if it were set out in full in the power of attorney.

244.42(3) (3) A principal may modify authority incorporated by reference.

244.42 History History: 2009 a. 319.

244.43 244.43 Construction of authority generally. Except as otherwise provided in the power of attorney, by executing a power of attorney that incorporates by reference a subject described in ss. 244.44 to 244.56 or that grants to an agent authority to do all acts that a principal could do under s. 244.41 (3), a principal authorizes the agent, with respect to that subject, to do all of the following:

244.43(1) (1) Demand, receive, and obtain by any lawful means, money or another thing of value to which the principal is, may become, or claims to be entitled, and conserve, invest, disburse, or use anything so received or obtained for the purposes intended.