Recently I was contacted by the family of an elderly man (“Phillip”) hospitalized with complications from pneumonia. The family resides several states away. They are concerned with whether a power of attorney Phillip created several years ago is valid. Pursuant to the power of attorney, Phillip had given his niece-in-law (his only relative living in the state) the ability to make decisions regarding his financial matters if he became incapacitated. Because of Phillip’s deteriorated health, Phillip’s physicians had confirmed his incapacity, and the power of attorney for health care and for financial matters had been invoked. Phillip’s family suspects that the appointed agent may be abusing her powers by inappropriately disposing of his assets.
The power of attorney form that Phillip had signed was a statutory power of attorney form. In Wisconsin, a principal (here, Phillip) may revoke the statutory power of attorney form by: (1) destroying the document; (2) by directing another person to destroy the document in the principal’s presence; or (3) by executing a written statement expressing his or her intent to revoke the power; and by signing and dating that statement. (See Wis. Stat. Sec. 243.10(7)(b)). Powers of attorney are also terminated by the principal’s death, or by dissolution or annulment of the principal’s marriage if the agent is the former spouse, pursuant to Wisconsin Statutes Sections 243.07(4)(a) and 854.15(3)(d).
The power of attorney form that Phillip had signed was a statutory power of attorney form. In Wisconsin, a principal (here, Phillip) may revoke the statutory power of attorney form by: (1) destroying the document; (2) by directing another person to destroy the document in the principal’s presence; or (3) by executing a written statement expressing his or her intent to revoke the power; and by signing and dating that statement. (See Wis. Stat. Sec. 243.10(7)(b)). Powers of attorney are also terminated by the principal’s death, or by dissolution or annulment of the principal’s marriage if the agent is the former spouse, pursuant to Wisconsin Statutes Sections 243.07(4)(a) and 854.15(3)(d).
According to Phillip’s family, Phillip had intended to talk with an attorney regarding his desire to change the agent he had previously designated in the form, but had never done so. Phillip also never destroyed the document, never had another person destroy it, and never put in writing his intent to revoke the power. Accordingly, the power of attorney remains effective.
Having said that, a power of attorney is to act only in the principal’s best interest. Phillip’s family is considering talking with the police and also court intervention, including a guardianship proceeding. (Under Wisconsin law, a previously executed power of attorney remains in effect despite the appointment of an alternative guardian unless, for good cause, the court revokes the power of attorney or limits the agent’s authority). The difficulty Phillip’s family faces is that they are not in any position to act on his behalf given their location and their own health issues. The family asked if I could serve as agent, however, the Supreme Court Rules are set up to discourage lawyers from serving as agents, unless the attorney is able to serve in a very limited capacity (such as funding a trust of which a bank or other party is a trustee).
I cannot express enough how important it is: (1) to select an agent whom you fully trust as power of attorney rather than choosing someone who may be “convenient,” and (2) to contact an attorney immediately to change a power of attorney when circumstances warrant a change.
I cannot express enough how important it is: (1) to select an agent whom you fully trust as power of attorney rather than choosing someone who may be “convenient,” and (2) to contact an attorney immediately to change a power of attorney when circumstances warrant a change.
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