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When people ask me what they can do to make things easier for their loved ones when something happens to them, the first question I ask is whether they have power of attorney. A good financial authorization (“POA”) is one of the most important estate planning documents you can have. You can appoint someone to act for you (your “agent” or “actual lawyer”) if you become incapacitated and unable to make your own decisions. This document is important because there is no standard law in Wisconsin that automatically appoints someone to “do your business for you” when you become incapacitated, as opposed to the standard law on intestacy which dictates where your assets go when you are to die without an estate plan. Without a good POA, your loved ones cannot make decisions for you or manage your finances without asking the court to appoint a guardian for you. Guardianship is an expensive, time-consuming, and potentially divisive process.
There are many do-it-yourself POA forms online. However, it is a good idea to have a lawyer create a bespoke POA for you. There are many things to consider when creating your POA, and one size will not fit all.
The agent’s powers
The POA lists the agent’s powers. Powers conferred on an agent usually include the authority to act as you would. Typical powers include buying or selling real estate, running a business, paying a debt, investing money, bringing legal proceedings, borrowing money, cashing checks, and collecting debt. Some powers are only granted when specifically mentioned in the POA. This includes the power to give gifts, create specific trusts, and designate beneficiaries of your insurance policies.
The power to give gifts of your money and property is a particularly important authority that may or may not be included on a standard online POA form. If you want to ensure that your agent has authority to conduct Medicaid planning (that is, medical assistance planning) on your behalf in the event you need to enter a nursing home, the POA must give your agent authority to create or change trusts Make gifts. The specific wording in a POA can have a significant impact on your agent’s ability to act on your behalf. Hence it is necessary to consult a lawyer.
While it is possible to designate more than one person as your agent (i.e. co-agent), it can cause confusion. When naming co-agents, you need to be clear about whether your co-agents must act together or whether they can each act independently. The Wisconsin standard is that each co-agent can exercise their powers independently, unless the POA specifically states otherwise. It is often preferable to name a single agent and then name alternate or backup agents to act in if the named agent cannot act.
Enforcement of the power of attorney
A POA must be running properly to be valid. Wisconsin law requires you to certify your signature in front of a notary public for your signature to be considered authentic. In Wisconsin, no additional witnesses are required for a valid POA.
A couple of final thoughts
In conclusion, it is incredibly important that everyone who is eighteen years or older has a POA document. The POA companion document is the Health Care Power of Attorney, which is equally important and enables your agent to make health care decisions for you. As a Wisconsin resident, if you are present without BOTH documents and unable to make your own decisions, your loved ones may need to apply for guardianship. Proactive measures will help your loved ones understand your needs and streamline the decision-making process should unfortunate circumstances arise.