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  • InsideTrack
  • November 20, 2013

    Legislative Update: Trust Code Overhaul, Estate Recovery, Landlord-Tenant, Informed Consent, and Other Legislative Actions

    This article highlights several bills that passed both houses of the Wisconsin Legislature while noting other significant bills that the legislature may take up when it returns.

    Joe Forward

    Wisconsin State CapitolNov. 20, 2013 – The Wisconsin Legislature wrapped up floor periods for the year. But it didn’t break for the holidays without passing some noteworthy legislation that will impact attorneys and the practice of law. This article highlights several bills that passed while noting other significant bills that the legislature may take up when it returns in January.

    SB 384: Trust Code Overhaul (Passed)

    Both houses on Nov. 15 cleared SB 384, which makes significant changes to the Wisconsin Trust Code, and Gov. Scott Walker is expected to sign the legislation. The trust code provides default rules that apply to trusts in Wisconsin.

    According the Legislative Reference Bureau (LRB), the bill “extends the prudent investor rule to directing parties and trust protectors who have a power over the investment of a trust, and clarifies rules relating to a trustee’s retention of securities received by a trustee.” The law also clarifies definitions of special and general “powers of appointment,” and includes other provisions.

    Milwaukee attorney Adam Wiensch, a trusts and estates lawyer at Foley & Lardner who helped draft the legislation, will explain the major provisions in an article slated for the Dec. 4 WisBar InsideTrack. So remember to check back for in-depth coverage.

    SB 384: Estate Recovery (Passed)

    SB 384, the bill that overhauls the Wisconsin Trust Code discussed above, also includes changes to “estate recovery” provisions that were included in the 2013-15 budget bill (Act 20). Act 20 changed laws relating to the recovery of non-probate assets from the estates of persons who received public assistance through Medicaid.

    Specifically, Act 20 expanded the types of property subject to Medicaid estate recovery claims, made it possible for the state to pursue recovery claims against the estates of surviving spouses, and restricted and complicated property transfers, according to attorney Carol Wessels, who explained the law in a recent September 2013 InsideTrack article, “Divestment, Estate Recovery Provisions Will Impact Family Transfers.”

    But SB 384 now “repeals the estate recovery and divestment provisions that were not approved by the [Joint Finance Committee] and makes a few changes to the estate recovery and divestment provisions that were approved,” according to the LRB.

    In the upcoming Dec. 4 InsideTrack, Wessels will discuss the SB 384 changes and how they impact estate recovery and divestment in Wisconsin.

    SB 179: Landlord-Tenant (Passed)

    In October, both houses cleared SB 179, which impacts landlord-tenant law in Wisconsin. The bill gives landlords the ability to serve eviction notices by postal mail, have vehicles towed immediately from private property, and fast-track eviction trials. It also makes it easier for landlords to dispose of the property of evicted tenants.

    The bill will become effective on “the first day of the third month beginning after publication.” The law awaits Gov. Walker’s signature.

    The law also changes who may appear in eviction actions. Under current law, a person may prosecute or defend an eviction action pro se or through an attorney. If the “person” is a corporation or other legal entity, a “full time authorized employee” of the entity may appear.

    Under SB 179, “part-time” employees of property management companies are allowed to represent the landlord in eviction proceedings. However, the Wisconsin Supreme Court’s rule on the unauthorized practice of law does not specifically authorize nonlawyer agents of corporate entities to represent the entity in small claims court.

    For a more detailed description of the bill and its legal ramifications, read the June 2013 InsideTrack article: “Landlord-Tenant Law: Proposed Bill Impacts Eviction Process, Property Rights.” However, note that several changes to the bill were made after publication of this article.

    AB 139: Informed Consent by Physicians (Passed)

    Both houses passed AB 139 changing the standard to determine whether a doctor adequately advised a patient about alternative treatment options, while giving doctors more protection from liability. The bill now awaits Gov. Scott Walker’s signature.

    Wisconsin’s informed consent law, Wis. Stat. section 448.30, requires physicians to inform patients “about the availability of all alternate, viable medical modes of treatment” and associated risks and benefits.

    To determine whether a doctor met the informed consent law, courts have historically used a “reasonable patient standard” to determine whether a doctor was negligent in giving information. Under that standard, courts ask what a reasonable person in the patient’s position would want to know to make an informed decision.

    AB 139 requires doctors to disclose “only information that a reasonable physician in the same or a similar medical specialty would know and disclose under the circumstances.”

    It also exempts doctors from liability for failure to inform patients about “any condition the physician has not included in his or her diagnosis at the time the physician informs the patient.” The law will take effect the day after the date of its publication.

    SJR 57: Election of Chief Justice (Passed, First Consideration)

    Both the Senate and the Assembly in November approved Senate Joint Resolution 57 to change the way the chief justice of the Wisconsin Supreme Court is elected. Joint resolutions do not need the governor’s approval.

    Currently, the justice with the most seniority serves as the court’s chief justice. Chief Justice Shirley Abrahamson has served in that role since 1996.

    The proposed constitutional amendment needs the approval of two consecutive legislatures, so the measure would need approval of the next legislature before it goes to the voters of Wisconsin on a statewide referendum.

    AB 387: Second Chance for Juveniles (Pending)

    AB 387 is a State Bar of Wisconsin-backed initiative that would return first-time, nonviolent 17-year-old offenders to juvenile court jurisdiction. The bill recently passed the Assembly’s Committee on Corrections by a vote of 9-0.

    AB 383: Criminal Procedure Overhaul (Pending)

    AB 383, a bill that overhauls Wisconsin’s criminal procedure bill is currently stalled in the Assembly’s Committee on Judiciary. Drafted by affiliates of the Wisconsin Judicial Commission, the bill has not moved since it was introduced in September.

    For more information on the proposed changes, read “Criminal Procedure Code: Overhaul in the Works, Key Players Explain” from the October 2013 InsideTrack.

    AB 218: Social Media Protection Act (Pending)

    AB 218 would prohibit employers, educational institutions, or landlords from requesting that current or prospective employees, students, or tenants give them access to personal Internet accounts, such as popular social media accounts like Facebook.

    This bill is pending. For more on the proposal, read the October 2013 InsideTrack article, “Social Media Snooping: Bill Limits Access to Personal Internet Accounts.”

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