Nov. 6, 2019 – Several bills pending in the Wisconsin Legislature may change the way attorneys counsel clients on estate planning matters and would allow notarizations of legal documents to be conducted electronically and remotely online.

AB 293, which has bipartisan support, would allow a notary public – commissioned by the state’s financial institutions agency – to obtain a commission as an online notary, allowing the notarization of legal documents online without being physically present.

That is, the bill would allow online notarial acts through “communication technology” that allows communication in real time by sight and sound, such as videoconferencing technology. Online notaries must keep electronic copies and records of online notarial acts and ensure the integrity and security of online notarizations.

The State Bar of Wisconsin’s Real Property, Probate and Trust (RPPT) Law Section supported a substitute amendment, which follows a recently adopted uniform law.

The Revised Uniform Law on Notarial Acts (RULONA) was adopted by the Uniform Law Commission in 2018. Members of the RPPT Section used the uniform law to create a new standalone chapter on notarial acts, which conforms with other uniform acts, including the Wisconsin Uniform Electronics Transactions Act (UETA).

In addition, the RPPT Section raised concern that any online notarization law should exclude estate planning documents, such as wills, trusts, marital property agreements, durable powers of attorney, and health care advanced directives to address how other technological advances, such electronic witnessing, impact estate planning documents.

The National Notary Association has reported that more than 20 states authorize remote notarization, including Iowa, Indiana, and Michigan.

Under the Wisconsin proposal, online notaries could perform notarizations for persons physically located inside or outside the U.S., not just persons located in Wisconsin.

Incapacitation and Advanced Directives

Unless a health care power of attorney (POA) instrument specifies otherwise, AB 287 would allow a physician assistant (PA) or advanced practice registered nurse (APRN) to be the second provider (after a physician) to make a finding of incapacity, which will activate the healthcare POA. Under current law, unless the healthcare POA specifies otherwise, two physicians (or a physician and psychologist) must make the call.

NPs and PAs could also be a second decision-maker with respect to “living wills,” which authorize the withholding or withdrawal of life-sustaining procedures such as feeding tubes if an individual has a “terminal condition” or is in a persistent vegetative state. The State Bar’s RPPT Section and the Elder Law Section oppose this legislation.

“Although APRNs and PAs are a valued and integral part of our health care system, due to the seriousness of the activation of a POA and/or a Living Will, RPPT believes that the protections provided by current law should remain,” the section noted.

Both sections say the improper activation or inactivation of a POA or Living Will could result in irreparable harm to the individual. Additionally, an APRN or PA may not feel free to reach a conclusion contrary to a physician with whom they work.

“The risk of an improper activation of a POA or a Living Will outweigh the focus on the expediency of activating such instruments,” the sections noted. The bill, which has bipartisan support, has passed Assembly Committee on Health.

Justice Support Initiative Bills

A package of bipartisan bills known as the “Justice Support Initiative” is still pending in the Wisconsin Legislature and would address judicial system issues such as heavy caseloads, delayed trials, and public defender shortages in rural counties.

Pay Progression for State Public Defenders. AB 501/SB 468 would provide for “pay progression” for attorneys in the State Public Defender’s Office. The State Bar supports this legislation and has long supported adequate compensation to attract and retain quality counsel to provide ethical and effective representation to indigent persons.

Public Defender Tuition Reimbursement Pilot Program. SB 461/AB-512 would establish a pilot program for tuition reimbursement, up to $20,000 per year, for attorneys taking public defender appointments in rural Wisconsin counties with 25,000 people or less. The State Bar supports legislative efforts to reduce the cost of legal education and to provide loan repayment assistance programs.

Prosecutor’s Council. SB 460/AB-513 would create an 11-member prosecutor board consisting of district attorneys, prosecutors, and the state and the Attorney General (or his designee), and would establish a State Prosecutors Office to manage policy issues. The State Bar supports this proposal.

Additional Circuit Courts. AB 470/SB 458 would create 12 additional circuit court branches to be phased-in over the next three years in counties that request an additional court branch, by resolution, and have appropriate infrastructure in place. The State Bar supports an increase in circuit court branches when the Director of State Courts determines that new courts are needed based on court caseloads.

Regulation of State Public Defenders. SB 462/AB-514 expands the State Public Defender Board’s rulemaking authority related to private bar attorney certification, decertification, or recertification for public defender appointments and adds grounds for the exclusion of private bar attorneys seeking public defender appointment cases.

Notice of Claim and Service by Email

AB 58 changes the requirements for a service of a notice of claim against a state officer, employee, or agent, under Wis. Stat. section 893.82(5). The bill passed the Assembly in June, and passed the Senate yesterday (Nov. 5). It now awaits the governor’s approval.

“This bill changes the requirements for service of a notice of claim against a state officer, employee, or agent to allow personal service or service by certified mail upon the attorney general at the attorney general's office either in the capitol or at the Department of Justice,” the Wisconsin Legislative Reference Bureau (LRB) noted.

AB 59 allows service of certain pleadings and other papers to be served by email, if an attorney or party has consented in writing. The bill passed the Assembly in June, and passed the Senate yesterday (Nov. 5). It now awaits the governor’s approval.

Currently, documents – other than initiating documents that require personal service – “must be served by traditional methods unless the responding party has consented in writing to accept electronic service or service by some other method.” the LRB noted.

AB 59 codifies existing practice by requiring a party to consent to service by email, in writing, but codification could mitigate disputes on whether email service is sufficient when deadlines apply, according to Appleton personal injury attorney Amy Risseeuw.

Risseeuw is on the State Bar Litigation Section’s Legislative Subcommittee, which looked at the same bill proposed in the last legislative session but stalled in the Senate at the end of session. The Litigation Section supports passage of AB 58 and AB 59.