Power Of Attorney
Do I need a power of attorney for finances and property?
A power of attorney for finances and property is a document wherein you may designate an agent to handle your financial affairs, prior to your death, should you become incompetent or are incapacitated and unable to act on your own. Most people don’t realize that a power of attorney is required even if it is your spouse or child. Our lawyers at Remley Law, S.C. can help advise you with creating or implementing a power of attorney.
What is covered under this type of power of attorney?
In Wisconsin, powers of attorney for finances and property are governed by the Uniform Power of Attorney for Finances and Property Act. You can make your power of attorney as broad or narrow as you want. If you want to make it broad you can give your agent authority to do almost everything necessary to handle your financial affairs, including: managing your bank accounts, paying your bills, managing your assets, filing your tax returns. The specific grants of power that can be made in a power of attorney can be discussed with your attorney.
What will happen if I don’t have a power of attorney?
If you can no longer manage your assets and you do not have a power of attorney, your loved ones may need to ask the court to appoint a guardian for you. This process can be long and costly. A durable power of attorney is generally a lot more flexible and cost effective than a guardianship.
When will the durable power of attorney be effective?
Wisconsin Statutes section 244.09 provides that “[a] power of attorney is effective when executed unless the principal provides in the power of attorney that it becomes effective at a future date or upon the occurrence of a future event or contingency.” If effective immediately, that means the moment it is signed the person can start making decisions on your behalf. If it is effective at a future event or contingency (i.e. springing) the person can only make decisions on your behalf if you are unable to, again such as if you are unconscious or have a mental illness.
When will my power of attorney be terminated?
Wisconsin Statutes section 244.10 provides that a power of attorney terminates when:
(a) The principal dies.
(b) The principal becomes incapacitated, if the power of attorney so provides.
(c) The principal revokes the power of attorney.
(d) The power of attorney provides that it terminates.
(e) The purpose of the power of attorney is accomplished.
(f) The principal revokes the agent’s authority or the agent dies, becomes incapacitated, or resigns, and the power of attorney does not provide for another agent to act under the power of attorney.
Additionally, your agents authority will terminate when:
(a) The principal revokes the authority.
(b) The agent dies, becomes incapacitated, or resigns.
(c) An action is filed for the dissolution or annulment of the agent’s marriage to the principal or their legal separation, unless the power of attorney otherwise provides.
(d) The power of attorney terminates.
(e) The domestic partnership of the principal and agent under ch. 770 is terminated unless the power of attorney otherwise provides.
Advance Care Directives
What is a health care power of attorney?
Through a health care power of attorney you can designation another person “as [your] health care agent for the purpose of making health care decisions on [your] behalf if [you] cannot, due to incapacity.” Wisconsin Statutes §155.01(10). Some of the issues covered specifically in a health care power of attorney are whether your agent may consent to mental health treatment, long term nursing home care, removing your feeding tube, and if you are pregnant, whether or not they may still make decisions for you.
Who should execute a power of attorney for health care?
Generally speaking, as soon as a person turns 18 years old they no longer have a designated person to make decisions for them. Therefore, everyone over 18 years old should execute a power of attorney for health care.
What is a living will?
Through a living will you can set forth your health care preferences, including your wishes regarding life support, for health care providers. See Wisconsin Statutes § 15.03(1) (“Any person of sound mind and 18 years of age or older may at any time voluntarily execute a declaration, which shall take effect on the date of execution, authorizing the withholding or withdrawal of life-sustaining procedures or of feeding tubes when the person is in a terminal condition or is in a persistent vegetative state.”)
What is a HIPAA Authorization?
Through a power of attorney for health care HIPAA authorization form you may grant individuals the ability to receive health care information for you without the constraints imposed by the Health Insurance Portability and Accountability Act (“HIPAA”). Through such authorization you can ensure any health care provider is authorized to share your personal medical information with those you designate.
What happens if I don’t have advance care directives (i.e., health care power of attorney and/or living will)?
If you don’t have such planning in place and something where to happen to you such that you cannot express the desired care you would like to receive, your loved ones may need to go through the courts to get authority to act on your behalf. This is time consuming, costly and the person appointed may not be the person you would have chosen to handle your affairs.
If I execute these documents can I still make my own health care choices?
Yes, health care powers of attorney are only effective if you are incapacitated and unable to make decisions for yourself; if you can make decisions for yourself, those decisions will control.
May I revoke my health care power of attorney and/or living will if I later change my mind?
Yes, Wisconsin Statutes section 154.05 provides that you may revoke your declaration to physicians in the following ways:
(a) By being canceled, defaced, obliterated, burned, torn or otherwise destroyed by the declarant or by some person who is directed by the declarant and who acts in the presence of the declarant.
(b) By a written revocation of the declarant expressing the intent to revoke, signed and dated by the declarant.
(c) By a verbal expression by the declarant of his or her intent to revoke the declaration. This revocation becomes effective only if the declarant or a person who is acting on behalf of the declarant notifies the attending physician of the revocation.
(d) By executing a subsequent declaration.
Additionally, Wisconsin Statutes section 155.40 provides that you may revoke your Power of Attorney for Health Care in the following ways:
(1) A principal may revoke his or her power of attorney for health care and invalidate the power of attorney for health care instrument at any time by doing any of the following:
(a) Canceling, defacing, obliterating, burning, tearing or otherwise destroying the power of attorney for health care instrument or directing another in the presence of the principal to so destroy the power of attorney for health care instrument.
(b) Executing a statement, in writing, that is signed and dated by the principal, expressing the principal’s intent to revoke the power of attorney for health care.
(c) Verbally expressing the principal’s intent to revoke the power of attorney for health care, in the presence of 2 witnesses.
(d) Executing a subsequent power of attorney for health care instrument.