A durable POA allows someone to help you with your financial matters if you ever become incapacitated—here's how to make one in Wisconsin.
If you want someone to be able to deposit your checks at your bank, file your taxes, or even sell or mortgage your home, you can create a handy document called a power of attorney. A POA is a simple document that grants specific powers to someone you trust—called an "agent" or "attorney-in-fact"—to handle certain matters for you.
- What Types of Powers of Attorney Are Available in Wisconsin?
- What Are the Legal Requirements of a Financial POA in Wisconsin?
- Steps for Making a Financial Power of Attorney in Wisconsin
- Who Can Be Named an Agent or Attorney-in-Fact in Wisconsin?
- When Does My Durable Financial POA Take Effect?
- When Does My Financial Power of Attorney End?
What Types of Powers of Attorney Are Available in Wisconsin?
You can make several different types of POAs in Wisconsin. In particular, many estate plans include two POAs:
- a power of attorney for finances, which allows someone to handle your financial or business matters, and
- a power of attorney for health care, which allows someone to make medical decisions on your behalf.
In most estate plans, these POAs are what are known as "durable" POAs, which means that they retain their effectiveness even after you're incapacitated. It's a good idea for most people to create these two documents, as they help plan for the unexpected.
To learn about other types of POAs, including non-durable (limited) and springing POAs, see What Is a Power of Attorney. Below, learn how to create a durable financial POA that is valid in Wisconsin.
What Are the Legal Requirements of a Financial POA in Wisconsin?
For your POA to be valid in Wisconsin, it must meet certain requirements.
Mental Capacity for Creating a POA
The person making a power of attorney must be of sound mind. The exact contours of this mental capacity requirement are open to interpretation by Wisconsin courts, and there have not been many cases on the subject. If you're helping someone make a POA and you're not sure if they meet the mental capacity requirement, you should consult a lawyer.
Notarization Requirement
While Wisconsin does not technically require you to get your POA notarized, notarization is strongly recommended. Under Wisconsin law, when you sign your POA in the presence of a notary public, you signature is presumed to be genuine—meaning your POA is more ironclad. In addition, many financial institutions will require a POA to be notarized (even if state law doesn't require it) before they accept it.
Steps for Making a Financial Power of Attorney in Wisconsin
1. Create the POA Using a Statutory Form, Software, or Attorney
Wisconsin offers a statutory form (a form drafted by the state legislature) with blanks that you can fill out to create your POA. For a more user-friendly experience, try WillMaker, which guides you through a series of questions to arrive at a POA (and estate plan, if you like) that meets your specific aims and is valid in your state. You can also hire a Wisconsin lawyer to create a POA for you. Many lawyers will include durable POAs as part of a more comprehensive estate plan alongside a will or living trust.
Whatever method you choose, the process of making the POA will include either granting your agent comprehensive powers or selecting (initialing), from a list, each specific power you want your agent to have. For example, you might choose to grant your agent the power to act for you with respect to these subject areas:
- real property (real estate)
- stocks and bonds
- banks and other financial institutions
- operation of entity or business
- benefits from governmental programs or civil or military service
- retirement plans
- taxes.
In Wisconsin, your POA is durable (effective even after incapacitation) unless it explicitly states that it terminates when you become incapacitated.
2. Sign the POA in the Presence of a Notary Public
As mentioned above, in Wisconsin, you should have your POA notarized.
3. Store the Original POA in a Safe Place
Once you have completed the POA, store the original in a safe place that your loved ones can easily access, and let them know where to find it. (It won't do much good locked away in a safe that no one can get into.) If you become incapacitated, your attorney-in-fact might need the original POA to act on your behalf.
4. Give a Copy to Your Agent or Attorney-in-Fact
You should also give a copy of the power of attorney to your agent so that your agent is familiar with the contents of the document.
5. File a Copy With the Land Records Office
If you initialed "real property," giving your agent the power to conduct transactions with real estate, you should also file a copy of your POA in the land records office in the county where you own real estate or expect to deal with real estate in the future. In Wisconsin, this office is called the register of deeds. If you put your POA on file, the register of deeds will be able to recognize your agent's authority if your agent ever needs to sell, mortgage, or transfer real estate for you.
6. Consider Giving a Copy to Financial Institutions
You can also give copies of your durable financial POA to banks or other institutions that your agent might need to deal with in the future. This step might eliminate some hassles for your agent if your agent ever needs to use the POA. Banks can sometimes be finicky about accepting POAs; see Can Banks Refuse a Power of Attorney? for more details.
Who Can Be Named an Agent or Attorney-in-Fact in Wisconsin?
Legally speaking, you can name any competent adult to serve as your agent. But you'll want to take into account certain practical considerations, such as the person's trustworthiness and geographical location. For more on choosing agents, see What Is a Power of Attorney.
Wisconsin allows you to appoint co-agents who are authorized to act at the same time, but it's usually advisable to stick to just one agent to minimize potential conflicts. However, naming a "successor" agent—an alternate who will become your agent if your first choice is unavailable for any reason—is always a good idea, as it creates a backup plan.
When Does My Durable Financial POA Take Effect?
Your POA is effective immediately unless it explicitly states that it takes effect at a future date.
It's possible to create a condition that must be satisfied before the POA becomes effective—such as a doctor declaring that you are incapacitated—but there are many reasons why this type of "springing" power of attorney is not usually advised.
When Does My Financial Power of Attorney End?
Any power of attorney automatically ends at your death. A durable POA also ends if:
- You revoke it. As long as you are mentally competent, you can revoke your document at any time.
- No agent is available. To reduce the likelihood of this happening, you can name a successor (alternate) agent in your document.
- A court invalidates your document. It's rare, but a court may declare your document invalid if it concludes that you were not mentally competent when you signed it, or that you were the victim of fraud or undue influence.
Additionally, in Wisconsin, if your spouse is named as your agent in your POA, that designation automatically ends if you or your spouse files for divorce. To be clear, your ex-spouse's authority to act as your agent ends, but your POA is still intact. So if you named a successor agent, that person would become your agent instead.
For more on Wisconsin planning issues, see our section on Wisconsin Estate Planning.
