Attorney Thomas B. Burton answers the following question: "How Many Witnesses for Financial Power of Attorney in Wisconsin?"
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I'm Attorney Thomas Burton. I'm an Estate Planning and Asset Protection Attorney here in Wisconsin and this week in our popular Question and Answer Series, we have the following question -
"How many witnesses are necessary for a financial power of attorney in the state of Wisconsin and may the notary be one of the witnesses? The notary will be meeting with my mother, the principal, at her house to sign the financial POA. I will be signing as the agent. Are additional witnesses necessary?"
Excellent question and I salute you for helping line this up ahead of time and getting that notary public to travel to your mom's house. The great news is, you do not need two witnesses for the Power of Attorney for Finances and Property in Wisconsin. All that is required is for the principal to sign the document in order to make it legally valid. Actually, under the statute, you don't even need a notary to make it valid. With Stat 244.05, covers it and it says, "To execute a power of attorney, the principal must sign the Power of Attorney or another individual in the principle's conscious presence and directed by the principal must sign the principal's name on the Power of Attorney. A signature of the principle on a power of attorney is presumed to be genuine if the principal makes an acknowledgement of the power of attorney before a notarial officer authorized under 706.07 to take acknowledgement."
So basically, what that's saying is all that's required legally to make it valid is the Principle's Signature. However, it's presumed to be valid if you sign or acknowledge it in front of a notary. So great job getting the notary lined up because best practice, what I do at my office, is always try to notarize a signature on a power of attorney because later, if you need to use that power of attorney, it's going to make it easier for the banks and financial institutions. They like to see it's been notarized on there but just be aware, strictly, if you're in a life and death situation and you couldn't get a notary there, a power of attorney can be, in Wisconsin, valid if it's just signed by the principal and that other part there I was talking about, what if the principal is unable to physically sign their name? Then in the principal's conscious presence and directed by the principle, another individual can sign the principal's name on the power of attorney. So that's a situation where someone's physically unable to do it but they can direct someone else to do that and again, I would only use that if you fall into that situation, if your mother can sign her name, have her go ahead and do it herself and then the notary can watch her sign and notarize her signature.
Now the confusion that may arise over the financial power of attorney is that the power of attorney for health care in Wisconsin, that does require that it be signed in front of two witnesses and their special requirements about who can be the witnesses, they must be disinterested witnesses and they also can't be health care providers. So here's what Wis Stat 155.10 says about that, "A valid Power of Attorney for Health Care must be in writing and dated and signed by the principal or by an individual who has attained age 18, at the express direction and in the presence of the principle", so again that's that same process where they could direct someone to sign, if they can't physically sign and then signed in the presence of two witnesses who meet the requirements of Sub 2 and D - Voluntarily Executed. Sub 2 then lists the requirements for witnesses, again, this is for a healthcare power of attorney, so you don't need this for your financial power of attorney but I am listing this for other people watching because of the confusion, the term power of attorney is used on both documents but the financial power of attorney only requires a notary whereas the healthcare power of attorney requires two witnesses and a witness on the healthcare power of attorney cannot be related to the principle by blood, marriage or adoption or the domestic partner of the individual. They cannot have knowledge that he or she is entitled or has a claim to any portion of the principle's estate. They cannot be directly financially responsible for the principal's health care and it cannot be an individual as a health care provider, who is serving the principal at the time of execution. An employee other than a chaplain or social worker of the health care provider or an employee other than a chaplain or a social worker of an inpatient health care facility in which the principal is an agent and it cannot be the principal's health care agent. So there's a longer list of people who can't be a witness there and that's why when I work with people to put together an estate plan, I always say the best time to execute a power of attorney for health care is in your lawyer's office, when you're alert, mentally alert and healthy and the witnesses are not generally any of these people. The lawyer is not your health care provider, not related by blood or marriage, not named in your estate plan and not the health care agent and again, the witness staff at my office generally are not related or health care, none of them are health care providers. So once you get into the hospital, it becomes trickier to find people who aren't health care providers. That's where there is that exception for the chaplain or social worker but you got to be able to track them down at your health care facility.
So for the benefit of everyone watching, just remember financial power of attorney, you don't need witnesses but best practice is to sign in front of a notary public and for the healthcare power of attorney, you must have those disinterested witnesses and it can't be a health care provider, someone who's financially responsible, related by blood or marriage or the health care agent, the person you're naming its agent themselves.
So I see this question come up a lot and I wanted to go in depth on it today with that answer about the two documents. I recommend everyone in Wisconsin have a valid healthcare power of attorney and the financial power of attorney in place.
So great job helping your mother get this financial power in place.
Excellent question, thank you for asking and we'll see you next time.
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