2010 Wisconsin Code
Chapter 243. General provisions relating to fraudulent conveyances and contracts.
243.07 Uniform durable power of attorney act.

243.07

243.07 Uniform durable power of attorney act.

243.07(1)

(1) Definitions. In this chapter:

243.07(1)(a)

(a) "Durable power of attorney" means a power of attorney by which a principal designates another as his or her agent in writing and the writing contains the words "this power of attorney shall not be affected by subsequent disability or incapacity of the principal", or "this power of attorney shall become effective upon the disability or incapacity of the principal", or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's subsequent disability or incapacity.

243.07(1)(b)

(b) "Incapacity" means the inability to receive and evaluate information effectively or to communicate decisions to such an extent that the individual lacks the capacity to manage his or her decisions.

243.07(2)

(2) Durable power of attorney not affected by disability. All acts done by an agent pursuant to a durable power of attorney during any period of disability or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and his or her successors in interest as if the principal were not disabled.

243.07(2m)

(2m) Durable power of attorney not affected by passage of time. The passage of time does not revoke a durable power of attorney unless the durable power of attorney states a time of revocation.

243.07(3)

(3) Relation of agent to court-appointed fiduciary.

243.07(3)(a)

(a) If, following execution of a durable power of attorney, the individual who is the principal is adjudicated incompetent and a guardian is appointed for him or her, a conservator is appointed for him or her under s. 54.76, or another fiduciary is charged by a court with the management of all or some of the principal's property, the durable power of attorney executed under this chapter by the principal remains in effect, except that the court may under s. 54.46 (2) (c) or s. 54.76 (3g) or, for a fiduciary, after a hearing upon a petition, as applicable, for good cause shown, revoke the durable power of attorney and invalidate the basic power of attorney for finances and property or limit the authority of the agent under the terms of the basic power of attorney for finances and property. Unless the court makes this revocation or limitation, the guardian, conservator, or other fiduciary, as applicable, may not make decisions for the principal that may be made by the agent, unless the guardian, conservator, or fiduciary is the agent.

243.07(3)(b)

(b) A principal may nominate, by a durable power of attorney, the conservator, guardian of his or her estate, or guardian of his or her person for consideration by the court if guardianship or conservatorship proceedings for the principal's person or estate are commenced after execution of the durable power of attorney. The court shall make its appointment in accordance with the principal's most recent nomination in a durable power of attorney except for good cause or disqualification.

243.07(4)

(4) Power of attorney not revoked until notice.

243.07(4)(a)

(a) The death of a principal who has executed a written power of attorney, durable or otherwise, does not revoke or terminate the agency as to the agent or other person, who, without actual knowledge of the death of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds successors in interest of the principal.

243.07(4)(b)

(b) The disability or incapacity of a principal who has previously executed a written power of attorney that is not a durable power does not revoke or terminate the agency as to the agent or other person, who, without actual knowledge of the disability or incapacity of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and his or her successors in interest.

243.07(5)

(5) Proof of continuance of durable and other powers of attorney by affidavit. As to acts undertaken in good faith reliance thereon, an affidavit executed by the agent under a power of attorney, durable or otherwise, stating that he or she did not have at the time of exercise of the power actual knowledge of the termination of the power by revocation or of the principal's death, disability or incapacity is conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, the affidavit when authenticated for record is likewise recordable. This subsection does not affect any provision in a power of attorney for its termination by expiration of time or occurrence of an event other than express revocation or a change in the principal's capacity.

243.07(6)

(6) Uniformity of application and construction. This section shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this section among states enacting it.

243.07(6m)

(6m) Relationship to power of attorney for health care. If a portion of a durable power of attorney that is executed under this section after April 28, 1990, specifically authorizes the agent to make health care decisions on behalf of the principal, that portion of the durable power of attorney has no force or effect and that portion of the durable power of attorney instrument that is so executed and makes these authorizations is invalid, unless that portion of the durable power of attorney instrument conforms to the requirements of ch. 155.

243.07(6r)

(6r) Petition to review agent's performance.

243.07(6r)(a)

(a) An interested party may petition the court assigned to exercise probate jurisdiction for the county where a principal is present or the county of the principal's legal residence to review whether the agent is performing his or her duties in accordance with the terms of the durable power of attorney executed by the principal. If the court finds after a hearing that the agent has not been performing in accordance with the terms of the durable power of attorney, the court may do any of the following:

243.07(6r)(a)1.

1. Direct the agent to act in accordance with the terms of the principal's durable power of attorney.

243.07(6r)(a)2.

2. Require the agent to report to the court concerning performance of the agent's duties at periods of time established by the court.

243.07(6r)(a)3.

3. Rescind all powers of the agent to act under the durable power of attorney.

243.07(6r)(b)

(b) If the principal has designated an alternate agent and if the powers of the first-designated agent are rescinded under par. (a) 3., the alternate agent is the agent and is subject to par. (a).

243.07(7)

(7) Application. This section applies to powers of attorney created on or after May 1, 1982.

243.07 - ANNOT.

NOTE: This section is repealed eff. 9-1-10 by 2009 Wis. Act 319.

243.07 - ANNOT.

History: 1981 c. 313; 1989 a. 200; 1991 a. 297; 1993 a. 213, 490; 1997 a. 233; 2005 a. 387; 2009 a. 319.

243.07 - ANNOT.

An attorney-in-fact may not make gratuitous transfers of a principal's assets unless the power of attorney expressly and unambiguously grants the authority to do so. A principal need not prove any injury to avoid a transaction in which the agent has acted as an adverse party without the principal's knowledge and consent. The principle is one of prevention, not remedial justice, that operates however fair the transaction may have been - however free from every taint of moral wrong. Losee v. Marine Bank, 2005 WI App 184, 286 Wis. 2d 438, 703 N.W.2d 751, 04-1938.

243.07 - ANNOT.

A joint checking account established under s. 705.03 prior to the execution of a power of attorney creates a presumption of donative intent. When an agent acting under a power of attorney transfers funds deposited by the principal from a joint account for the agent's own use, a presumption of fraud is created. When these two conflicting and inconsistent presumptions coexist, the circuit court is free to make a determination based upon the facts and the credibility of the witnesses. Extrinsic evidence may be admissible to determine the intent of the parties. Russ v. Russ, 2007 WI 83, 302 Wis. 2d 264, 734 N.W.2d 874, 05-2492.

243.07 - ANNOT.

This section permits an attorney-in-fact to make medical decisions, but it cannot be used to place someone in a nursing home or to avoid other requirements of chs. 55 and 880. 77 Atty. Gen. 156.