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