Attorney Thomas B. Burton answers the following question: "When is POA Effective Immediately Without a Physician's Signature". Attorney Burton discusses how Powers of Attorney (POA) are activated and in which situations the POA needs a physician's signature.
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Hello, I'm Attorney Thomas Burton. I'm an estate planning and asset protection attorney here in Wisconsin and today's question comes from Milwaukee, Wisconsin and the viewer asks the following:
"What language shows a durable power of attorney is immediately effective without having a physician psychologist sign off? The durable power of attorney states this durable power of attorney under Wisconsin statute 243.07 as amended and shall not be affected by subsequent disability or incapacity. Is this the language that shows it's effective immediately? I see this in the document mom passed first and was caretaker to dad, who had stroke 7 years ago. We know we will have to present that certificate as well to make alternative durable power of attorney, effective."
Okay, so great question and I do see confusion about this term 'Durable Power of Attorney'. The meaning of the word 'durable' means it outlasts any incapacity you have. So that's what in general you want because if you do a power of attorney, you want it in place to avoid the need for a court ordered guardianship which is the only alternative if you don't have a financial power of attorney in place.
So based on what you've told me, in the language of the document, it sounds like the power of attorney, the principal, the person making it signed, was effective upon signing which generally, I do that for a lot of clients. The alternative is what we call a 'Springing Power of Attorney' and that if there's a springing power of attorney there should be language at the beginning that says the power of attorney only becomes effective upon dot dot dot and that's usually that language about two doctors or a doctor and a psychologist, and it would list those conditions and like I said it's often the language about the doctors or the doctor or psychologist and in the healthcare power of attorney by default, the healthcare power of attorney is a springing power meaning as long as you retain the ability to direct your own health care affairs, you remain in charge. So that document has that language about the two physicians or the physician and psychologists but the financial power of attorney would only have that if it's what we call a springing power and the statutory document often is a durable one, meaning it goes into effect immediately. It depends how it's drafted, right? So a lot of the ones I draft are effective immediately. So you don't need to activate it later and it sounds to me like this power of attorney was effective upon the date it was signed but I can't say for sure without examining the whole document. So I recommend you talk with an estate planning attorney in your area if you're still confused, have them look over the document and make sure it's currently effective.
Now the second part of your question, it sounds like your dad is still alive but mom was the caretaker and she was possibly the primary agent, now one of you needs to take over as the alternate agent and you're right, a lot of times you need to sign to show that you're now the agent and the form I use, I have the alternate say, "I am now acting as agent because the first agent is unavailable due to blank" and in this case it could be you would say death, mother died and you can list the date of death and attach the death certificate if you need to and if anyone questions like the bank, why you're acting under the power of attorney, that would be the reason.
So again, a durable power of attorney, it's effective as soon as you sign it and the springing power needs some other trigger in order to spring it into action.
So great question and thank you for asking.
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