In Wisconsin there are situations where a spouse cannot manage or sell a piece of property for the other spouse without a power of attorney for finances or a guardianship over their spouse. These situations include:
- Selling homestead property—Wisconsin Statute 706.02(f) requires that a conveyance of homestead property, no matter how it is titled, be signed by both spouses or on behalf of either spouse by a representative, such as their agent under a power of attorney or a guardian.
- Selling other real estate titled in both spouses’ names--Wisconsin Statute 706.02 also requires that any real estate titled in the names of both spouses be signed by both spouses or by each spouse’s representative.
- Selling a vehicle—If your vehicle is titled using the word “and” rather than “or,” both spouses must sign off on any sale of the vehicle.
- Filing taxes—Both spouses, or each spouse’s representative, must sign their tax forms if they file them jointly.
- Managing and taking distributions from your IRA/401k/retirement account—Without appropriate authorization, your spouse may not manage or request distributions from your retirement account.
- Managing any accounts listed in your name only—If you have any accounts listed in your sole name, your spouse has no right to access the account, unless you have authorized them to do so through a power of attorney.
- Unilaterally executing a Marital Property Agreement—If you ever need Medicaid to help pay for your long-term care, Wisconsin allows the state to recover expenses it paid to you for your care from your spouse’s estate. A Marital Property Agreement can help to avoid this treatment; however, a Marital Property Agreement requires the signatures of both spouses, unless the spouse is given explicit authority to do such planning under a power of attorney for finances.
- Managing solely-owned business accounts—If your spouse owns their own business you may not manage their business assets unless you are given authority through a power of attorney form. This may be more complicated if your spouse owns a business with others. Please seek advice in this scenario.
What is a power of attorney for finances?: A Power of Attorney for Finances and Property is a document in which you (the “principal”) name another individual (the "agent") to manage your finances and property. You determine the money and property you want the agent to have authority over, as well as the authority you want the agent to have.
The authority can be broad or specific, depending on your preference. A power of attorney for finances may be “durable,” meaning that your agent may manage your finances in the event of incapacity or incompetence.
Why have a power of attorney for finances?: A Durable Power of Attorney for finances allows your agent to manage your finances even if you become incapacitated or incompetent.
- Without a Durable Power of Attorney, your family may need to seek a guardianship in order to manage your money; apply for work-related disability, Social Security disability, or other benefits; access or change your retirement plan; file insurance claims or appeal denials; sign your tax forms; sell your home and help you move somewhere else; or hire accountants, lawyers, or other professionals on your behalf. Appointing a guardian is time consuming and expensive. The family must hire a lawyer who will arrange for a court hearing. A physician must provide evidence that you cannot handle your own affairs. And, if you are physically able, you must go to the courthouse to hear the testimony that you are incompetent.
When does the agent’s authority begin?: You may choose whether your agent begins managing your property immediately or at some later date or event, such as when you become incapacitated.
What is “incapacity?”: Whether you are incapacitated is determined in the following manner:
- A physician or psychologist’s finding that you have an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance, such that you are unable to manage your property or finances.
- A judge, attorney, or appropriate government official’s finding that you are missing, detained, or are outside of the United States and unable to return.
- You may provide your own method by choosing a different individual who will decide whether you are incapacitated, and by creating your own definition of incapacity.
Does this prevent me from controlling my money?: The power of attorney document takes away none of your rights to control your property and finances. Your money is still your money. The document merely gives the agent permission to help manage your finances in a way that is consistent with your best interest.
When does the Power of Attorney end?: If at any time you are dissatisfied with your agent’s performance of their duties, you may revoke the power of attorney document. To revoke you must sign and date a document expressing your intent to revoke your power of attorney for finances. This document must then be given to your agent and your financial institutions to let them know that you have revoked your power of attorney.
There are many more decisions relating to the power of attorney for finances than are written here. If you have any questions about whether to create a power of attorney for finances, the agent’s duties, or your rights, please do not hesitate to call Attorney Heller-Neal at (262)902-0595, or via email: firstname.lastname@example.org.
For more basic information about the power of attorney for finances in Wisconsin, please see the Wisconsin Bar’s Q and A.