Jan. 27, 2010 – After years of study and review, changes could soon be implemented in Wisconsin’s durable power of attorney law.  The revised law would promote acceptance of durable powers of attorney and address problems in the current law that allow abuses.

In 2002, the Uniform Law Commission conducted a national study of durable powers of attorney.  Of the 371 probate and elder law attorneys and others who responded to the survey, sixty-four percent said they had encountered instances of abuse of durable power of attorney arrangements. A follow-up report by the American Association of Retired People Public Policy Institute, in conjunction with the American Bar Association Commission on Law and Aging, found that most state laws came up short in protecting vulnerable principals from financial abuse by agents.

Responding to these concerns, the Uniform Law Commission introduced the Uniform Power of Attorney Act in 2006. Since that time, a group of interested attorneys and stakeholders have considered refinements to conform current Wisconsin law to the national guidelines.  The State Bar’s Real Property, Probate, and Trust Section and the Elder Law Section have been active participants in this study group. State Senator Fred Risser (D-Madison) and State Representative David Cullen (D-Milwaukee) have recently circulated legislation approved and forwarded by the study group.

The proposed Wisconsin law will do the following:

• Preserve the effectiveness of durable powers as form of surrogate decision-making.
• Provide safeguards for the protection of the principal, the agent, and persons who rely on the agent’s authority.
• Specify the types of authority that can be granted to an agent and require express authorization by the principal when certain types of authority – for example, the authority to make gifts – could dissipate the principal’s property or alter the principal’s estate plan.
• Offer clearer guidelines for the agent, who is often a trusted family member.
• Encourage acceptance of a power of attorney by third parties by providing protections for the good faith acceptance or refusal of an acknowledged power of attorney.
• Offer an additional protective measure for the principal by providing that third persons may refuse to accept the power and report to an appropriate agency or to law enforcement if they believe that “the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent.”

The Uniform Power of Attorney Act protects those persons who wish to name an agent under a durable power attorney while also offering transparency and protection for those who are asked to accept the powers of attorney.  The Real Property, Probate, and Trust Section and the Elder Law Section encourage legislators to support these needed changes.

The State Bar of Wisconsin establishes and maintains sections for carrying on the work of the association, each within its proper field of study defined in its bylaws. Each section consists of members who voluntarily enroll in the section because of a special interest in the particular field of law to which the section is dedicated. Section positions are taken on behalf of the section only.

The views expressed on this issue have not been approved by the Board of Governors of the State Bar of Wisconsin and are not the views of the State Bar as a whole. These views are those of the section alone.

For more information please contact Cale Battles at (800) 444-9404, ext. 6077 or (608) 250-6077.

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