10/13/2016

1

Wisconsin Powers of Attorney from A to Z

Attorney Grace KnutsonWisconsin Guardianship Support CenterGreater Wisconsin Agency on Aging Resources, Inc. (GWAAR)

What Will Be Discussed Today?

Core Concepts in Legal Decision-making

Power of Attorney (POA) BasicsTypes Agents: Powers, duties, selectionStages

Common Scenarios and Questions

10/13/2016

Core Concepts

Self-determination: a person’s right to decide for himself or herself, is innate.

Recognition of this: Any person 18 and over is presumed to be able to manage his or her own financial and personal affairs. This presumption remains, including if the adult has a disability, unless the person is found incompetent by the court.

10/13/2016

10/13/2016

2

Core Concepts

Wisconsin is not a “next of kin” or “family consent” state This means that an adult family member

generally cannot make decisions for another adult family member without having the specific authority given to that family member by the court or the specific adult family member (i.e., POA).

10/13/2016

Core Concepts

What is a power of attorney (POA)?

A legal document signed by a person (principal) to give another person (agent) the ability and legal authority to act on behalf of the signer

10/13/2016

Advance Directives

Living Will (Declaration to Physicians)

Authorization for Final Disposition

DNR OrdersPower of Attorney for Health

CarePower of Attorney for Finance

10/13/2016

10/13/2016

3

10/13/2016

Order of Restrictiveness Self

SupportedDecision-Making

POA

Rep. Payee OR

Trustee

Conservator

Guardian 10/13/2016

Powers of Attorney

10/13/2016

10/13/2016

4

Types of Powers of Attorney

A legal document that allows the agent to handle matters related to the principal’s health care

A legal document that allows the agent to handle matters related to the principal’s finances and property

Powers of Attorney for Health Care

Powers of Attorney for Finance

10/13/2016

What does “Durable POA” mean?

Authority of an agent to act remains after incapacity

10/13/2016

Powers of Attorney: Basic Concepts

Why one may want a Power of Attorney?Written and legal expression of and reflection of personal

wishes if incapacitated Selection of own decision-maker Avoidance of a guardianship Avoid conflict or confusion Nomination of guardian if a guardian is needed Affordable: whether by an attorney or on one’s ownCreation and execution can be done (fairly) quickly

10/13/2016

10/13/2016

5

Agent’s AuthorityAll agents:must act according to the

principal’s expressed wishes (and the law).

If the principal’s wishes are not known, then the agent must act in manner reflective of the principal’s best interests and the law.

10/13/2016

Health Care Agent’s Authority

The agent may:Make health care-related decisions

onlyMake end-of-life treatment decisions if

specified in HCPOAConsent to nursing home or CBRF

admission if specified in HCPOA

10/13/2016

HCPOA Agent’s Authority

The agent may not:Consent to the principal’s admission

into certain facilities;Consent to certain types of mental

health treatment; andAct in manner inconsistent with the

principal’s expressed wishes, HCPOA, or the law

10/13/2016

10/13/2016

6

Financial Agent’s Authority

Power of Attorney for Finances (POAF): Some powers are generally given while others must be expressly given.You choose what powers you want

your agent to have.

10/13/2016

POAF Agent’s Authority

Generally designated powers include the power to manage the following:• Real property,• Digital property• Personal property,• Stocks and bonds, • Bank accounts, • The operation of

entity or business, • Estates, trusts, and

other beneficial interests,

• Claims and litigation,

• Personal/family maintenance,

• Benefits, • Retirement

plans, and • Taxes.

10/13/2016

POAF Agent’s Authority

Powers not included unless expressly and clearly stated:Create/amend/revoke,/terminate an inter vivos trust, Gifting, Create/change rights of survivorship or beneficiary

designation, Delegate authority granted under the power of attorney, Waive the principal's right to be a beneficiary of a joint and

survivor annuity, including a survivor benefit under a retirement plan,

Exercise fiduciary powers that only the principal has authority to delegate, and

Disclaim property.10/13/201

6

10/13/2016

7

Selection of Agents- Traits & Skills

TrustGeneral appropriatenessParticular skillsAdvocacy skillsLocation

10/13/2016

Selection of Agents- Traits & Skills

Legal Prohibition: HCPOA agent cannot be employee of health care provider if not related

POAF and HCPOA agents do not have to be the same person.

10/13/2016

Selection of Agents

A successor/alternate agent (or agents) can be chosen for either type of POA.

“successor” agents for POAFs “alternate” agents for HCPOAs

10/13/2016

10/13/2016

8

Selection of Agents

Having co-agents is not generally recommended for either type of POA, even if agreement of agents is required in the POA.Common issue: What if agents

cannot agree and an act needs to be performed?

Legal ambiguity about validity for HCPOA co-agents.

10/13/2016

Important POA stages

Four key terms when considering process of POAsExecutionActivationDeactivationRevocation

10/13/2016

Execution

Execution: Legal action of the principal consenting to terms of POA and signing the document. The principal must be “sound of mind” at the time of execution.

Each POA has specific rules about how to execute each type of document.

10/13/2016

10/13/2016

9

Execution

Signed by principal, OR

Signed by an adult at the principal’s

express direction and in his or her

presence

Signed in presence of 2 disinterested

witnesses

Witnesses must sign

Power of Attorney for Health Care:

10/13/2016

Execution

Signed by principal, OR

Signed by another adult upon the principal's direction and his or her “conscious presence”

Not required to be notarized (but strongly recommended)

No witnessing requirement

Power of Attorney for Finance:

10/13/2016

Steps Post Execution

Inform your agent(s) of his or her position and discuss with your agent(s) your wishes.

Inform appropriate third parties of POA and consider whether to provide copies.

Keep a list of all parties given a copy of the POA(s).

10/13/2016

10/13/2016

10

The Traveling Principal

Recognized in WI if:Executed

according to laws of foreign state

ANDAgent authority

complies with WI law

Recognized in WI if: Complies with

law of jurisdiction that determines the meaning and effect

Meets requirements for a military power of attorney under 10 USC 1044b.

POA for Health Care POA for Finance

10/13/2016

Activation

Immediate POA takes effect upon

signing

Springing POA does NOT take effect

at the time of signing Most POAHCs and some

POAFs are activated only if (and when) the principal is determined to be incapacitated and other necessary steps are performed.

Process giving the agent authority to act.

10/13/2016

Common Issue: Activation

Ms. White had a severe allergic reaction to the pesticide found on the skin of an apple she ate. She is now in a coma. She has both a POA-HC and POA-F. Assuming she adopted the standard provisions, how can these documents be activated so her agents can act?

10/13/2016

10/13/2016

11

Common Issue: Activation, cont’d

Ms. White’s POA-HC:Two doctors have opined that Ms. White

is incapacitated and have signed a statement of incapacity. The POA-HC agent has been notified and the agent may now act.

Ms. White’s POA-F:Ms. White’s POA-F was activated upon

her signing the document. There is no separate need for her to be declared incapacitated to activate the POA-F.

10/13/2016

Deactivation

Process that shows the principal has regained his or her capacity after being declared incapacitated for POA purposes

No legal requirement stating a POA must be formally deactivated exists.

Why may you want to consider a formal deactivation? Clarifies state and removes questions about incapacity

10/13/2016

Revocation

I am not happy with my POA agent (or POA). I want to revoke my POA. How do I do this?

10/13/2016

10/13/2016

12

Revocation

Revocation: at any time and may revoke by: 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.

**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.

Verbally expressing the principal's intent to revoke the power of attorney for health care, in the presence of 2 witnesses.

Executing a new HCPOA instrument.

Power of Attorney for Health Care:

10/13/2016

Revocation

Revocation: at any time – law states agent’s authority terminates when “principal revokes authority”

**Recommended: Draft and sign short statement revoking agent’s authority and provide copies of statement to appropriate parties, including the agent

Execution of new POAF does not revoke prior POAF unless expressly stated.

Power of Attorney for Finance:

10/13/2016

Changes to POA Post Execution

Changes made by hand or an addendum would be invalid

Clearly revoke the old POA and execute a new POA naming the new agent

10/13/2016

10/13/2016

13

Common Issue 1. Execution of POA

Mr. Rogers executed his own POA. He believes he has a valid POA, but it does not appear to have been executed correctly. It was signed by 1 witness and it was not notarized. Is this a valid POA?

10/13/2016

Common Issue: Execution of POA, cont’d

What type of POA does Mr. Rogers have?

POA-HC: InvalidNeeds 2 witnesses

POA-F: Valid but problematic:If it is a POA-F, there is no need to have any

witnesses beyond the notary. If it is a POA-F, while notarization is not required,

the presumption of genuineness exists when notarized. See Wis. Stat. § 244.05.

10/13/2016

Common Issue: Post-Execution Changes

Dory is competent but is sometimes forgetful. When she executed her POA, she forgot that she wanted to name her adult stepson, Nemo, as a successor agent. Can she handwrite his name on the POA and designate him as a successor agent?

10/13/2016

10/13/2016

14

Common Issue 4: Post-Execution Changes, cont’d

No, Ms. Dory cannot simply add a new agent to be the POA-F agent. New agents, new powers, crossed off old agents and powers, and other significant changes cannot be done. While the addition/removal may not invalidate the entire POA, the change is invalid.

What to do? Clearly revoke the old POA and execute a new POA naming Nemo as the alternate agent

10/13/2016

Common Issue: When a POA IsNot Enough

Consider:

Revocation

Principal’s capacity to execute new POA-F

Alternate agent?

Petition the court for review of the agent’s

conduct

Guardianship

criminal and civil suit to recover money 10/13/2016

Common Issue 7: When is a POA Not Enough, Divorce

Nick Parker and Elizabeth James-Parker were married when he executed a POA-HC. Mr. Parker named his wife as the agent. No alternate agent was named. The couple has since divorced. Mr. Parker was injured in a camping accident and he is now deemed incapacitated. May Ms. James

(f/k/a James-Parker) act as the agent?

10/13/2016

10/13/2016

15

Common Issue 7: When is a POA Not Enough, Divorce, cont’d

The ex-wife cannot act as agent under the POA-HC. Her authority to act became invalid upon their divorce. In this case, there is no alternate agent, so guardianship may need to be considered.Per statute, “the power of attorney for

healthcare is revoked and the power of attorney for health care instrument is invalid.” Wis. Stat. § 155.40(2).

10/13/2016

Common Issue 8: The Traveling PrincipalMs. Hall travels frequently between her

(inherited) spring and summer residence in Wisconsin and her winter residence in Florida. Within the last five years, Ms. Hall executed a POA in Florida. During her most recent visit to Wisconsin, she became ill and was deemed incapacitated. How is her POA treated in Wisconsin?

10/13/2016

Common Issue 8: The Traveling Principal, cont’d

Ms. Hall’s POAs: Assuming Ms. Hall’s POA – HC was validly

executed and the authority needing to be exercised is allowed by Wisconsin law and provided by her POA-HC, then it may be followed as it was drafted. Her POAF may also be followed to the extent it is valid and consistent with Florida’s law (if named).

10/13/2016

10/13/2016

16

Example Scenario Example: Stella is 75. She was diagnosed with

Alzheimer's Disease within the last year. Her POAHC has not been activated. Her son, James, is her agent. Situation 1: Stella has been living on her own. After

being diagnosed, James has wanted to admit her into a local nursing home. Stella wants to stay at home and objects to the admission.

Situation 2: Stella’s health takes a dramatic turn for the worse after getting sick with pneumonia. She is in the hospital and not expected to live. Her POAHC has been activated. James wants to admit her into a hospice facility; she wants to die at home.

10/13/2016

Example Scenario Example: Jane is 90 years old. She lives alone. She has limited

physical ability and does not leave her home that much. Russell befriends Jane and starts to stop by her home on a weekly basis. Situation 1: After Russell experiences car trouble, he asked Jane

for $200 to fix his vehicle. She lent the $200 to him with repayment terms agreed upon.

Situation 2: Jane lent the money knowing she would never be paid back. She has a fixed income. Russell does not have the money, but she wanted to protect his pride.

Situation 3: Russell asks for another $200 the following week and then asks for money at least once a month. He threatens to not visit if she does not provide the money.

Situation 4: Prior to the car repairs, Russell was made Jane’s POAF and POAHC agents. The POAF was activated when it was signed. Russell uses his role as the agent to withdraw the $200 from Jane’s accounts on a weekly basis without her knowledge or consent. 10/13/201

6

Example Scenario Example: Ed is 60 years old. He suffered from a

traumatic brain injury when he was 55. He never executed any advance directives. However, no guardianship was ever pursued. Situation 1: Nancy, Ed’s sister, believes Ed’s house

is not clean and Ed’s diet is poor. She talks to Ed but he likes the way he lives and will not change.

Situation 2: A guardianship of the estate and person was entered five years ago. Nancy is both types of guardian. She hires a weekly cleaning service and grocery delivery.

Situation 3: Ed has been told he needs a medical procedure done. However, after the TBI, Ed is very fearful of hospitals, doctors, and being anesthetized. Ed does not want the surgery. What can Nancy do? 10/13/201

6

10/13/2016

17

Example ScenarioViola completed a power of

attorney for health care and finances naming her husband as primary agent and her sister as secondary agent. She included many details about her wishes for health care treatment and how she would want her finances managed. Unfortunately her husband and sister have both passed away. Viola said she was too tired to go through the process of making a new POAs. 10/13/201

6

Summary

Each person has right to be make a variety of decisions each day, including bad or odd decisions.

When the level of risk increases and the capacity to understand that risk is significantly diminished, the person may need assistance with decision-making.Such assistance must be tailored to person’s specific

needs and abilities. Least restrictive assistance providedAppropriate use of authority for legal decision-

makers reflective of the applicable legal standard (e.g., POA agents-expressed wishes; guardians- best interest)

Always ask the person about his or her opinion10/13/201

6

QUESTIONS?

10/13/2016

10/13/2016

18

Guardianship Support Center The Wisconsin Guardianship Support Center (GSC) is a statewide

information resource that works with vulnerable adults, their families and friends, guardians and other legally authorized representatives, and professionals working with vulnerable adults.

Through a toll-free helpline, the GSC provides information on the following subjects:Guardianships, Powers of attorney, Protective placement, Other advance directives, andMore.

Other services include a free quarterly newsletter, other publications, an APS listserv available to professionals working with vulnerable adults, and presentations on these topics throughout the state

10/13/2016

Note: Use of this Presentation:

THIS POWERPOINT MAY BE USED AS A REFERENCE TOOL BY THOSE WHO ATTENDED THIS PRESENTATION.

THIS POWERPOINT IS NOT INTENDED FOR GENERAL CONSUMER USE, AND IT MAY NOT BE USED AS PART OF ANY OTHER PRESENTATION WITHOUT THE EXPRESS WRITTEN PERMISSION OF THE WI GUARDIANSHIP SUPPORT CENTER.