Attorney Thomas B. Burton answers the following question:
Is the Primary Agent Signature Required to Add Another Agent Under a Durable Power of Attorney?
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Today's question comes from Appleton, Wisconsin and the reader ask the following:
“If a person is added to a durable power of attorney, is the original durable power of attorney agent signature required? My brother is the original durable agent under the power of attorney. My dad wants to add me as an agent. My brother is out of state, is his signature required to make this change? If we sign the original durable power of attorney, we mail him an original, is this acceptable in Wisconsin? If my brother refuses to sign, then what?”
So the answer to the question here is, it sounds like your father wants to add you as an agent. He can do this as any time as the principal. Under a power of attorney, we call the person who makes the power of attorney document the principal. They grant power to an agent to act on their behalf.
Your father can Execute a new power of attorney document naming you as primary agent if he wants and he does not require any signature by your brother to do so. Now, it would be a good idea to let the brother know if he has been replaced as primary agent. If your father just wants to add you as a backup agent to your brother, then he could also execute this new power of attorney and name you in the order he wishes. So either your brother with you as the backup agent or you and the brother is the backup agent.
You mentioned your brother's out of state. So the law that matters is the law where your father lives which if it's in Wisconsin, that's where he's going to want to execute the power of attorney. And whether your brother is out of state or not, does not matter for purposes of whether your father can do this.
Now, one other thing I'll mention to people watching is I sometimes advise people in their choosing between agents to consider the agent or child, who may be closer geographically if they need them. It doesn't mean you can't appoint an agent who is out of state. But sometimes logistically it gets harder for them to get back and deal with the paperwork necessary in an emergency or other event.
So again, your father can execute a new power of attorney that names you as agent and your brother as backup agent or chooses any order he wishes as long as he is competent to execute the document, he can do so at any time.
Great question and thank you for asking.
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