Advance directives, including power of attorney (POA) documents for health care or finance, often are created with the intent to preserve a POA principal’s wishes and autonomy as much as possible. Advance directives can prevent decisions being made on behalf of principals that they themselves would not want and reduce the likelihood of needing a guardian in the future.
However, throughout Wisconsin, ill-informed agents and third parties believe that the agent has total authority and judgment over the principal, despite the language of POA documents and the statutes upon which they were formed. In circumstances in which the principal is physically isolated, this can lead to their immediate contacts treating them as though they are already a ward and have lost their autonomy. This is not just in theory; it is actually occurring in Wisconsin.
Lawyers who work with specific clients only on their advance directives may never encounter those clients again to know if they are facing these problems later in life, but issues associated with POAs can manifest in several ways, ranging from misinformed to abusive agents and from minor to major life decisions.
Long-term care facilities and POA agents for health care may decide, without consulting the principal, whether the principal is able to consume alcohol. A lawyer following up on a client residing in a nursing home or assisted living facility may be told to contact the POA agent, who may refuse to connect the two. A principal may refuse treatment or transport by paramedics who would otherwise respect the principal’s articulated wishes, only to have the paramedics defer to the POA agent for health care. An agent for finance may decide to direct all the principal’s income and cash to the agent’s own accounts to “manage,” thereby seriously limiting the principal’s access to his or her own money. Unfortunately, our experience and investigation for this article have shown that these cases and worse are occurring even with principals who have full capacity and have not been declared incompetent.
A review of the policy underlying POAs, as well as traditional agency relationships, reveals that these scenarios are contrary not only to the purpose of POAs but to several statutory provisions. Common law certainly grants POA agents some authority to act on the principal’s behalf.1 However, as with a traditional agency relationship, granting this authority to a finance or health care agent does not also deprive the principal of his or her own authority to act.2 Furthermore, courts will narrowly construe POA documents and the grants of authority contained within.3
A deeper dive into these statutes will help equip advocates for potential improper pushback from POA agents and third parties. Finally, we provide some suggestions for averting these problems before they occur. Therefore, this article is designed for lawyers who know their way around powers of attorney but may need to explain these issues to other interested parties.
This article continues the series of articles that focus on how lawyers can help older clients avoid or end elder abuse. Other articles in the series include the following:
Statutory Authority for the Principal’s Retained Rights Under a Financial POA
Currently, Wis. Stat. chapter 244, the chapter devoted to POA documents for finance (POAF documents), does not have any provisions describing the rights the principal loses when signing the POA, nor does the statute provide the agent any “powers” over the principal. However, there are many references in this chapter to the preservation of the principal’s rights.
Wisconsin adopted the Uniform Power of Attorney for Finances and Property Act in 2009. The main purpose of the Act is “to assist persons interested in establishing non-court regimes for the management of their affairs in the event of later incompetence or disability.”4 By 2019, most states had adopted this Act.
In addition to presuming that all POAs are durable unless otherwise stated and requiring that all grants of authority to make gifts or self-deal be express in the POA document, the Act also standardized the duties of an agent.
Under prior law, attorney-drafted POAs could explain or otherwise relax the agent’s fiduciary duties. However, under the new law, Wis. Stat. section 244.14 provides that some of these duties can no longer be modified. Most importantly for the preservation of a client’s rights, among the duties that cannot be modified are the duty to follow the principal’s reasonable expectations, the duty to act in good faith, and the duty to only act within the scope of the POA. (Throughout this article, “reasonable” does not mean “best possible” decision or expectation; instead, it means a decision or expectation that could be seen as reasonable.)
Although an agent’s fiduciary obligations must rise to essentially the same standard under both pre-Act and post-Act law, the 2009 revision expressly provides that when a principal’s reasonable expectations are known, they must be followed, even when those expectations may differ from the best interest of the principal.5
Under the Act, a financial agent is required to, first and foremost, “[a]ct in accordance with the principal’s reasonable expectations to the extent actually known by the agent.” It is only when the principal’s wishes cannot be known that agents may make decisions on their own.6 States adopting this language recognize the following:
“As a general principle of law, when a principal imbues an agent with the power of attorney, he does not automatically relinquish all power to manage his own affairs. Rather, the principal-agent relationship under a power of attorney calls for both parties to exercise their authority concurrently and allows the principal to continue to take an active role in the management of his affairs.”7
Wis. Stat. section 244.14 also states that an agent must “act in good faith” and “act loyally for the principal’s benefit.” Therefore, when the principal has expressed wishes, they must be followed. Under traditional rules of statutory interpretation, words must be given their literal effect and thus, these statutory provisions are inconsistent with the idea of the agent’s authority overruling the principal’s.
To see these statutes in action, look no further than the publicly available statutory forms published by the Wisconsin Department of Health Services (DHS). The POAF form includes an instructional page, consistent with the points above, stating:
“Do what you know the principal reasonably expects you to do with the principal’s property or, if you do not know the principal’s expectations, act in the principal’s best interest.”8
The form also includes a notice to principals that, “By signing this document, you are not giving up any powers or rights to control your finances or property. Instead, you are giving your agent, in addition to yourself, the authority to handle your finances and property.”9
Even under the former, weaker POAF statutes, Wisconsin courts recognized the principal’s authority over the agent and even the court’s own opinion of the agent’s actions. In Lippert v. Lippert,10 a 2011 unpublished decision, the Wisconsin Court of Appeals analyzed the remaining authority of a principal who signed a financial POA designating one of his sons as agent. His other son became concerned about his brother’s actions so he filed a petition under the old POA act to review his brother’s conduct as agent.11 However, the court determined it need not even address those concerns because the principal retained the authority to undo or alter any remedy the court could prescribe. Furthermore, the principal expressly stated that he agreed with his agent’s acts, and thus this “affirmation and ratification of the acts of his agent terminates the necessity of any review of his agent’s performance.”
It also is essential to note that in practice, these POAF documents usually are activated without a finding of incapacity, so the idea that principals cannot make their own decisions is unsupported. Neither the statutes nor the jurisprudence or forms provided to the public give any indication that a principal is giving up anything when signing a POAF document.
Statutory Authority for the Principal’s Retained Rights Under a Health Care POA
Although Wisconsin still uses its own POA for health care (POAHC) statutes versus a uniform law, these statutes and statutory forms are likewise filled with references to the agent’s duty to comply with the principal’s expressed wishes. For example, Wis. Stat. section 155.20(5) provides:
Paige Resch, U.W. 2017, and Desmonde Bennett, Loyola-New Orleans 2011, practice with Wisconsin Judicare, Wausau, focusing on elder and Native American rights. Resch has worked under both the Elder Rights Project and the Indian Law Office. Reprinted with permission of the May 2019 Elder Law & Special Needs Journal of Wisconsin, published by the State Bar of Wisconsin Elder Law Section.
“The health care agent shall act in good faith consistently with the desires of the principal as expressed in the power of attorney for health care instrument or as otherwise specifically directed by the principal to the health care agent at any time. … In the absence of a specific directive by the principal or if the principal’s desires are unknown, the health care agent shall, in good faith, act in the best interests of the principal in exercising his or her authority.”
When a provider is uncertain whose wishes should be followed, Wisconsin law makes it clear that a known agent has priority over anyone else, “other than the principal.”12 This is yet another indication from the Wisconsin Legislature that it intended for the principal’s wishes to always take priority, even over a health care agent’s.
Just as with the financial POA, these mandates are reflected in the statutory, publicly available, forms. The first words in the form state:
“Notice to person making this document. You have the right to make decisions about your health care. No health care may be given to you over your objection, and necessary health care may not be stopped or withheld if you object.”13
The form also contains instructions detailing the principal’s right to revoke the document “at any time.”14 If a principal revokes the health care agent’s authority, the agent is required to communicate that revocation to any health care provider the agent knows is in possession of the newly revoked POAHC.15 Correspondingly, when a health care provider learns of a revocation, the provider must also record that information in the principal’s medical records.16
The ability to easily and unequivocally revoke a POAHC under these statutes is yet another indication of the principal’s retained authority to make any of the decisions his or her health care agent may be authorized to make. Further recognizing the importance of the principal’s wishes, the law provides that even if a principal is later found incompetent by a court, the POAHC will remain in effect, allowing the agent to carry out the principal’s wishes, unless a court finds good cause to revoke the POAHC.17
Finally, Wisconsin law contains one more provision that implicitly recognizes the substantial importance of the principal’s retained authority. Under Wis. Stat. section 155.70(2), a person cannot be required to execute a POAHC as a condition to receive health care or be admitted to a health care facility. Likewise, a principal’s choice to designate a POAHC agent cannot be a bar to health care or admission. These provisions further demonstrate that the principal’s authority takes precedence over the desires of both an agent and a health care provider.
Interplay of Incapacity and Retained Authority of Principal
While POAF documents often are activated upon signing, both POAF and POAHC documents also can be worded to require activation upon a finding of incapacity, usually by two physicians. However, such finding of incapacity is not the final word on the principal’s authority.
In the context of a financial POA, incapacity means the principal cannot manage property, finances, or business affairs because the individual meets one of the following criteria:
The principalhas an impairment in the ability to receive and evaluate information or make or communicate decisions, even with the use of technological assistance.
The principalis missing.
The principalis detained, including incarceration in a correctional facility.
The principalis outside the United States and unable to return.18
For a healthcare POA, incapacity is defined as the inability to receive and evaluate information effectively, or to communicate decisions to such an extent that the individual lacks the capacity to manage his or her health care decisions.19
These definitions are crucial because, in both contexts, incapacity is often a matter of an inability to communicate, not a lack of understanding. In other words, a finding of incapacity does not necessarily mean that the patient lacks understanding. In fact, the principal of the statutory POAH is presumed to be incapacitated under the statutes but retains the right to revoke the document at any time. This further indicates that the legislature clearly intended to preserve decision-making rights for incapacitated individuals. Moreover, both definitions might be interpreted to allow for temporary incapacity; neither definition includes an element of permanence. In fact, two of the scenarios for a POAF (missing and incarceration) are likely or frequently temporary.
Most important, a finding of incapacity is not the same as a finding of incompetence, which is determined by the court, is permanent, and is intended to actually remove constitutional rights from a ward.20 Power of attorney procedures, on the other hand, are specifically meant to protect the proposed ward’s constitutional rights. If an agent or facility truly believes that a declared wish of the principal is harmful to the principal and that the principal’s condition is such that the person should not be allowed to make decisions, the correct course is pursuing a guardianship, not ignoring a principal whose rights have not yet been legally removed.
If an agent or facility truly believes that a declared wish of the principal is harmful to the principal and that the principal’s condition is such that the person should not be allowed to make decisions, the correct course is pursuing a guardianship, not ignoring a principal whose rights have not yet been legally removed.
Even under a guardianship, the principal’s wishes should never be automatically excluded from consideration. When determining whether to appoint a guardian and whether the guardian should be the former POA agent, “included in the list of what the court ‘shall consider’ are the powers of attorney, the opinions of the proposed ward and her family, and the appointment of a corporate guardian.”21
Thus, even if the proposed ward does not have complete authority to determine who his or her guardian will be, the ward’s wishes should always be a part of the analysis. Once a guardian is appointed, that person will be required to inform and consult with the ward to the extent possible. Even in that context, it is the duty of the guardian of the person or the estate to discuss, determine, and, when possible, honor the ward’s preferences.22
To a well-meaning POA agent (often a family member), a formal finding of “incapacity” and the circumstances leading to that finding may be heartbreaking and may seem like a serious situation that requires the agent to step into the decision-making role for the principal.
However, this misunderstanding has serious consequences. If the agent does not know the difference between incapacity and incompetence, or a health care provider does not appreciate this distinction, it is essential that these parties be educated for the sake of the principal.
Powers of Attorney in Residential Facilities
In addition to these statutes, the laws governing nursing homes and resident rights also prioritize the authority of the principal.
For example, Centers for Medicare and Medicaid Services rules governing care planning require the involvement of a resident, regardless of incapacity or existing POA documents.23 In the section providing for rights of nursing home residents, the Wisconsin Administrative Code mandates that a resident has a right to:
Make and receive telephone calls within reasonable limits and in privacy;24
Participate in the planning of care and treatment, be fully informed of care and treatment options, and refuse any form of care or treatment unless the care or treatment has been ordered by a court;25 and
Make decisions relating to care, activities, daily routines, and other aspects of life that enhance the resident’s self-reliance and support the resident’s autonomy and decision-making.26
Likewise, Wis. Stat. section 50.09 also provides for resident rights in certain long-term care facilities, including the following:
Private and unrestricted communications with the resident’s family, physician, advanced practice nurse prescriber, attorney, and any other person unless medically contraindicated as documented;27
Reasonable access to a telephone for private communications;28 and
Management of the resident’s own financial affairs.29
So why do health care providers end up ignoring the clear mandates of resident bills of rights and POAs?
Senior Care Specialist Morgan Hinkley theorizes that facilities might be reacting to other major mandates. Hinkley is the manager of clinic operations for Aurora Medical Center in Oshkosh and has also worked as a long-term care administrator for more than 13 years. “Overreaction to regulations is common, especially in long-term care,” says Hinkley.30 “Because there is so much resting on successful regulatory surveys, facilities try to ‘risk manage’ the care and services they provide.”
As a result, a recent state survey violation might result in a facility enacting a strict procedure to mitigate its future risk that also, in practice, places the agent’s authority over the principal’s. For example, a facility might screen a resident’s calls, diverting many directly to the POA agent, further isolating the principal. Regardless of the intention, these practices violate the principal-resident’s rights.
In a particularly egregious situation in Wisconsin, a health care facility refused to allow a principal to leave the facility because the agent objected to the discharge. Even after the principal revoked the POA, made moving arrangements, and communicated plans with the provider, the provider refused to honor the principal-resident’s wishes and even told the person that it had contacted law enforcement authorities to prevent the person from leaving.
That example, like many other disputes involving POA documents, was eventually resolved without court intervention. However, the fact that these situations are not being litigated does not mean that they are not occurring.
Stories like these indicate the need for agents and health care providers to be fully educated not only about their rights and duties under these documents, but also about the principal’s decision-making authority. “All individuals have the right to make decisions, even if those decisions may be ‘risky.’ Life is a series of choices, all providing a level of risk and benefit. At no time in a person’s life should their right to make choices be taken from them,” says Hinkley.
Advocating for Your Client’s Authority as a Principal
As discussed above, the Wisconsin statutory forms clearly mandate that a principal will retain decision-making authority, but lawyers drafting POAs may want to consider adding even more language on this issue to each POA document they draft.
The statutory forms also provide blank space where this may be included. This additional language could include mandates that reiterate the principal’s general authority or specific authorities about which the principal is most concerned. For example, in a case dealing with an agent’s use of a preexisting joint bank account, the Wisconsin Supreme Court stated that “[o]ne way to avoid future uncertainty about the intentions of parties to a POA would be to have the principal write clearly his or her intentions into the POA document.”31
Although many POA documents, including the statutory forms and instructions, already reference the principal’s retained authority, having it written in the principal’s own handwriting, citing to more statutes supporting the statement, and drawing special attention to these sections with use of formatting techniques may help prevent or minimize any misunderstandings by POA agents and third parties.
Outside of drafting the legal document, lawyers can take other proactive measures to preserve their client’s decision-making authority. Working with family members and staff members of a facility when a client is admitted to make sure they understand the nature of the POA and the authority preserved could go a long way to preventing problems in the future.
Likewise, educating clients directly about their rights as a principal will make it more likely they will be able to recognize a violation if one occurs. In particular, lawyers should make sure that their clients understand they retain full authority even after they have signed a POA, that they can revoke the POA at any time, and that they have the right to request that their agent provide “receipts, disbursements, or transactions conducted on behalf of the principal.”32
Working with family members and staff members of a facility when a client is admitted to make sure they understand the nature of the POA and the authority preserved could go a long way to preventing problems in the future.
To the extent possible, lawyers should also consider instructing POA agents about the limitations of their decision-making power, so long as the agent understands that no attorney-client relationship is formed by having this conversation with the lawyer.
Even if a lawyer knows that the agent has the best of intentions, that agent may still unknowingly cross the line with the principal (the lawyer’s client), especially if the agent is being told by third parties that the agent is the decision maker. Short of in-person meetings with the agent, lawyers and law firms should consider reviewing any written instructions they provide their clients’ named agents, over and above the public DHS instructions. Lawyers should make sure these materials are not vague on the tough questions, especially when capacity comes into question.33
Lawyers should also think about clients who do not like the idea of retaining their own autonomy. Even some clients with full capacity lament their dislike for decision-making and inquire about handing over their authority to someone else. More often, clients fear their own potential loss of capacity and want their POA agent to take over for them as easily as possible.
However, most of the traditional planning strategies can help with this when used proactively. For example, by writing down detailed wishes concerning spending, health care, and housing preferences, principals can give their POA agents specific, personal directions to follow in the future. These instructions may assist the agent or keep them in check, but they may also show when principals have changed their minds completely and may need a guardian. If such a proceeding is necessary, naming a principal’s first choices for guardian may assist in the process.
Ultimately, doubling down on these best practices will assist both those clients who prefer a smooth transition in the face of incompetence and those who want to retain their autonomy for as long as possible.
Finally, attorneys who believe that a client may already be subject to excessive control should consider talking to them openly about how their wishes might conflict with the decisions being made for them. The Elder Rights Projects of Wisconsin Judicare Inc. and Legal Action of Wisconsin may also be of some assistance, even in cases in which the client is not impoverished. If the client is truly isolated and the lawyer cannot contact the person, it may be appropriate to contact other resources such as the local ombudsperson, aging and disability resource center, or adult protective services agency, to name a few.
There are countless ways that a mishandled POA document can take over a principal’s life, despite the many laws meant to protect the principal. Unfortunately, subtlety and boilerplate will not always protect a principal from ignorance and bad practices.
For the time being, lawyers in this line of work need to account for the chance that agents and third parties will ignore the actual text of a POA document and statutes unless they are made glaringly obvious. By taking proactive measures above and beyond those provided by law, lawyers can do more to ensure their clients’ wishes are always respected.
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1 Knight v. Milwaukee Cty. (In re Guardianship of Muriel K.), 2002 WI 27, ¶ 27, 251 Wis. 2d 10, 640 N.W.2d 773 (“Durable powers of attorney are intended to give competent individuals the ability to delegate to an agent broad powers to manage their affairs and assets in the event of incompetency.”) (citing Wis. Stat. § 243.10(1); In re Estate of Hegel, 668 N.E.2d 474, 476 (Ohio 1996)).
2 This applies even in the context of POAs that grant parental authority. In re Welfare of Child of T.C.M., 758 N.W.2d 340, 346–47 (Minn. Ct. App. 2008) (“Moreover, there is no support in law for an argument that the execution of a power of attorney in general functions to divest the principal of its interest in the thing which is the subject of the power.”)
3 Schmitz v. Firstar Bank Milwaukee, 2003 WI 21, ¶ 28, 260 Wis. 2d 24, 658 N.W.2d 442 (“the general rule of interpretation is that powers of attorney are to be strictly construed and interpreted to grant only those powers that are clearly delineated or specified”). See Praefke v. American Enter. Life Ins. Co., 2002 WI App 235, 257 Wis. 2d 637, 655 N.W.2d 456; First Nat’l Bank of Omro v. Winnebago Cty. Agr. & Horticultural Ass'n, 141 Wis. 476, 480, 124 N.W. 656 (1910); see also Texas Soil Recycling Inc. v. Intercargo Ins. Co., 273 F.3d 644, 651 (5th Cir.2001) (applying Texas law); O’Neal v. United States, 258 F.3d 1265, 1275 (11th Cir.2001) (applying Alabama law).
4 Unif. Durable Power of Attorney Act, Prefatory Note, 8A U.L.A. 310 (Master ed.1993). See also Knight, 2002 WI 21, ¶ 29, 251 Wis. 2d 10.
5 In a criminal case examining jury instructions at a trial involving an agent’s self-dealing, the circuit court used the language of the new POA Act, rather than the old standard that was in effect when the self-dealing occurred. Comparing the two standards, the appellate court recognized that “the trial court invited jurors to determine [the defendant’s] guilt based upon a standard more detrimental to him than the standard in effect at the time he committed key acts underlying his conviction.” State v. Bryzek, 2016 WI App 48, ¶ 9, 882 N.W.2d 483, 370 Wis.2d 237.
6 Wis. Stat. § 244.14(1)(a). These instructions also use the “good faith” and “act loyally” language.
7 Prudential Ins. Co. of Am. v. Eisen, No. CIV.A. 11-05872, 2012 WL 876747, at *8 n.9 (E.D. Pa. Mar. 15, 2012) (unpublished).
8 Statutory form for finance, Wis. Stat. section 244.61.
9 The Wisconsin DHS statutory form power of attorney for finances form.
10 Lippert v. Lippert, No. 2010AP1053, 2011 WL 1775997, ¶¶ 1-15 (Wis. Ct. App. May 11, 2011) (unpublished).
11 It should be noted that under the new POA Act, a family member does not have the inherent authority to petition for this review unless he or she is otherwise a guardian, conservator, or other fiduciary acting for the principal. See Wis. Stat. § 244.14(8)
12 Wis. Stat. § 155.20(1) (emphasis added).
13 Wis Stat. § 155.30(1).
15 Wis Stat. § 155.30(3).
16 Wis Stat. § 155.30(4). Furthermore, Wis. Stat. section 155.50(1)(d) makes clear that a health care provider can be “charged with a crime, held civilly liable or charged with unprofessional conduct” if the provider has actual knowledge of a revocation and fails to honor the revocation.
17 Wis. Stat. § 155.60(2).
18 Wis. Stat. § 244.02(7).
19 Wis. Stat. § 155.01(8).
20 See generally Wis. Stat. ch. 54.
21 G.C. v. Krueger (Matter of Guardianship of E.C.), No. 2015AP2196, 2016 WL 7234737, ¶¶ 27-48 (Wis. Ct. App. Dec. 13, 2016) (unpublished). See also Wis. Stat. § 54.15.
22 Wis. Stat. §§ 54.19, 54.20(1), 54.25(2)(d)3.
23 State Operations Manual, pp. 216-228.
24 Wis. Admin. Code § DHS 83.32(3)(a).
25 Wis. Admin. Code § DHS 83.32(3)(j).
26 Wis. Admin. Code § 83.32(3)(k).
27 Wis. Stat. § 50.09(1)(a).
28 Wis. Stat. § 50.09(1)(a)(2).
29 Wis. Stat. § 50.09(1)(c).
30 Brewster Village of Appleton.
31 Russ v. Russ, 2007 WI 83, ¶ 30, 302 Wis. 2d 264, 734 N.W.2d 874.
32 Wis. Stat. § 244.14.
33 For example, “Managing Someone Else’s Money: Help for Agents under a Power of Attorney” is a common instructional resource for POA finance agents and is circulated by AARP and the Consumer Financial Protection Bureau. However, the instructions regarding deferring to the principal are very limited and vague: “Can Martina still manage her money and property after signing a power of attorney? Yes, as long as she is still able to make decisions.” This single question and answer does not define when Martina can make decisions and leaves it up to the agent to guess at the meaning.