A Wisconsin durable power of attorney is a critical legal tool empowering a designated agent (or attorney-in-fact) to oversee and manage the financial affairs of the principal signatory. This formal authorization ensures that, even when the principal becomes incapacitated, they have a trusted individual to handle their financial affairs.
The designation remains effective until the principal explicitly revokes it or the agent’s authority terminates. The principal determines whether to grant the agent permission to conduct comprehensive or specific financial oversight. A principal must create a separate healthcare power of attorney or advance directive to give an agent control over their medical decisions.
Laws
- Statute: Chapter 244 – Uniform Power of Attorney for Finances and Property Act.
- Presumed Durable: Yes (§ 244.04).
- Signing Requirements: Signature required. Witnesses are not mandated by law (§ 244.05).
- Notarization: The principal’s signature is considered authentic if they sign before a notarial officer authorized under ch. 140 to take acknowledgments.
- Statutory Form: Yes (§ 244.61).
Definitions
Durable Power of Attorney – A power of attorney that is not terminated by the principal’s incapacity (§ 244.02(2)).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
§ 244.57 explores the types of gifts an agent can make on the principal’s behalf and the considerations they must keep in mind:
Types of Gifts
- Gift to an individual: A gift to an individual must not exceed (in an amount per donee) the annual dollar limits of the federal gift tax exclusion under § 2503(b) of the Internal Revenue Code.
- Gift for an individual’s benefit: A gift for the individual’s benefit must abide by the same federal gift tax exclusion. This kind of gift can include one to a prepaid tuition plan or tuition savings account under § 529 of the Internal Revenue Code, a trust, or an account under §§ 54.854 to 54.898.
- Split gift: The agent may grant authorization, under § 2513 of the Internal Revenue Code, to the division of a gift given by the principal’s partner. The amount awarded to each recipient shouldn’t surpass the yearly gift tax exemptions available to both spouses.
Considerations
- What the principal owns.
- The principal’s expected living costs and bills.
- Tax reduction methods for estate, inheritance, and income taxes.
- Qualifying benefits or assistance from government programs.
- The principal’s history of giving gifts.
Agent’s Authority Limitations
An agent can perform the following actions on the principal’s behalf or with the principal’s property if the principal has expressly granted them authority in a DPOA (§ 244.41). No other agreement should prohibit the action:
- Access the content of an electronic communication (defined in § 711.03 (6)) that the principal sends or receives.
- Deny property, including power of appointment.
- Employ fiduciary powers that the principal has authority to assign.
- Relinquish the principal’s right to be a beneficiary of a joint and survivor annuity.
- Delegate authority under the DPOA.
- Initiate or edit a beneficiary designation or survivorship rights.
- Make a gift.
- Terminate, amend, create, or revoke an inter vivos trust.
Furthermore, unless the document states otherwise, an agent who isn’t a domestic partner or spouse of the principal may not do any of the following:
- Exercise authority to create in the agent an interest in the principal’s property, whether by disclaimer, beneficiary designation, right of survivorship, gift, or otherwise.
- Exercise authority to create in an individual to whom the agent owes a legal obligation of support by the aforementioned methods.
Safekeeping and Registration
Wisconsin doesn’t maintain a registry or database to store DPOAs, but you should record any document assigning authority over real estate affairs in your county’s Register of Deeds Office.
While documents containing instructions for real estate authority require official recording, you should also keep any DPOA in a safe location. Consider using a fireproof and waterproof safe, and ensure the agent and principal both have a copy for their records.
Exercise caution if using a safety deposit box because even though they’re secure, your agent may have difficulty accessing it if they don’t have prior authorization or the bank is unaware of your incapacitation.
Additional Resources
- State Bar of Wisconsin: Lists information on DPOAs for finances and other property.
- Legal Action of Wisconsin: Lets individuals apply for free legal help.
- Wisconsin State Law Library: Lists resources for legal assistance by county.
Related Forms
Minor (Child) Power of Attorney
Signing Requirements: Notary public and an optional witness. (§ 48.979(2)).
