During Your Lifetime
In your Healthcare Power of Attorney (HCPOA), you appoint individuals who will serve as your Agent and your Successor Agent for your medical decisions. You’re HCPOA Agent cannot act on your behalf until and unless your HCPOA is “activated” by two (2) physicians who have evaluated you and determined that you are incapacitated. In Wisconsin, you are deemed “incapacitated” if you are no longer able to receive and evaluate information effectively or to communicate decisions about your medical care. Incapacity can be temporary due to an illness or accident. Your HCPOA can be deactivated by one (1) physician who has evaluated you and determined that you are no longer incapacitated. Permanent incapacity typically arises later in life due to dementia.
Your HCPOA provides details about your HCPOA Agent’s authority. For example, a typical Healthcare Power of Attorney directs the HCPOA Agent to withhold or withdraw treatment in the event your quality of life has deteriorated beyond what you want to experience – typically when you are in the end stages of a terminal illness or are in a persistent vegetative state.
Your agent can make a wide range of medical decisions for you, including:
- Choosing your doctors and other healthcare providers
- Consenting to or refusing medical procedures and treatments, such as chemotherapy or dialysis
- Placing you in a nursing home or other assisted living facility
- Deciding whether or not to put you on life support or withdraw you from life support
- Authorizing organ donation
- Authorizing an autopsy
Your HCPOA Agent must make decisions according to your wishes. The HCPOA Agent has a duty to act in good faith in carrying out your wishes when you are no longer able to do so. Accordingly, it is critically important for you to talk with your HCPOA Agent about your preferences. We have given you a four (4) page memo that walks through various scenarios to help guide this discussion.
Your HCPOA Agent’s authority ceases upon your death.
- Guardianship Support Center
- Wisconsin Department of Health Services (DHS)
- State Bar of Wisconsin – Health Care: Answering Your Legal Questions
In your Durable Power of Attorney for Finances and Property (Financial POA), you appoint individuals who will serve as your Agent and your Successor Agent to manage your finances and property. Unlike your HCPOA, your POA goes into effect immediately after you sign it and, therefore, there is no need for a finding of incapacity for your Financial POA Agent to act on your behalf.
Your Financial POA provides details about your Financial Agent’s authority. The document grants broad authority to your Financial Agent so that they have the ability to manage your affairs.
Common duties of a Financial Agent include:
- Paying your bills
- Managing your bank accounts
- Investing your money
- Selling your property
- Filing your income tax returns
It is important to choose someone you trust to be your financial agent. This person should be responsible and have good financial judgment. Your Financial Agent has a fiduciary duty to act with reasonable care and prudence when making decisions on your behalf and cannot personally benefit from his or her actions as the Financial Agent. Some choose to waive this fiduciary duty if their spouse is serving as their agent to allow their spouse to engage in self-dealing, as many spouses consider all assets available to both spouses.
Your Financial Agent’s authority ceases upon your death.
After Your Death
Representative for Final Disposition
In your Authorization for Final Disposition, you name a Representative to make decisions immediately following your death.
Your Representative typically makes decisions about:
- Your obituary
- Your funeral
- Whether you are cremated or buried
- The disposition of your remains.
Without this document, there is a default law in Wisconsin that dictates who makes these decisions: your heirs at law (as long as they are over 18). Your spouse is first. If no spouse, they your children make these decisions by majority vote. If you have no spouse and no children, your parents are next on the list. If your parents have predeceased, then your siblings by majority vote. If you have no surviving siblings, then your next of kin.
Moreover, your Authorization for Final Disposition allows you to specify any preferences you have about these kinds of decisions and the Representative is tasked with carrying out your preferences. If you have not indicated what you want in a specific situation, your Representative has the authority to make decisions on your behalf.
The Personal Representative (PR) is an individual nominated by you in your Last Will & Testament to manage your probate estate.
Assets that are part of your “probate estate” include any assets: (1) owned by you and not a trust; (2) not co-owned by another with right of survivorship; or (3) without a beneficiary designation.
The threshold for court supervised probate is $50,000. If your probate estate is less than $50,000, your PR can complete a Transfer by Affidavit to secure and distribute your estate assets according to your Will. If a probate becomes necessary, your PR must petition the court to open a probate and the court appoints the person you nominate to serve as the PR. The court will issue Domiciliary Letters, giving the PR authority to act on behalf of your estate.
The PR is responsible for:
- Gathering and selling assets of the estate
- Paying off any debts and managing creditors
- Filing income tax returns if needed
- Distributing the remaining assets to the beneficiaries of the estate
- Filing all required documents with the court
The PR is a fiduciary, which means that the PR has a legal obligation to act in the best interests of the beneficiaries of the estate and cannot personally benefit from his or her actions as PR.
It is important for the PR to be able to:
- Keep good records of all actions as PR
- Communicate regularly with the beneficiaries of the estate
- Timely file all documents with the court
Original Grantors and Co-Trustees
You are the original Grantors and Co-Trustees of your Trust. A Grantor is anyone who funds the Trust. As the Co-Trustees, you are responsible for managing any assets held by the Trust. Because the main purpose of your Trust is to avoid probate, most of your assets will not be held by the trust until the second of you dies, as the Trust will named as the beneficiary or contingent beneficiary on most of your assets. We will be assisting you with transferring your home into your Trust. If you sell your home during your lifetime, you will sign the listing contract and closing documents as the Trustees of the Trust.
You will continue to serve as Trustees until death or incapacity. If one of you is unable to continue serving, the other will continue to serve as Trustee on your own.
Your Successor Trustee and Alternate Successor Trustee are the individuals you have designated to administer the Trust assets after you both pass, or sooner if both of you are incapacitated and are unable to manage your assets yourself. If the Successor Trustee is acting due to your incapacity, it is likely that the only asset in the Trust is your home. In that case, your Financial Agent will continue to manage your financial affairs during your lifetime. You have designated the same individuals as your Financial Agent and Successor Trustee so that the same individual will be managing your financial affairs if it becomes necessary.
When both of you have passed, the Successor Trustee is responsible for:
- Obtaining an EIN from the IRS and opening a new bank account under that EIN for the Trust
- Filing claims to have the assets paid out to the Trust for assets that name the Trust as a beneficiary
- Selling real property
- Depositing assets into the new Trust account
- Where applicable, investing trust assets in a prudent manner
- Paying any debts
- Distributing Trust assets to the beneficiaries as set forth in the Trust
- Filing income tax returns for the year you passed and, if the Trust has more than $600 in income in any given year, income tax returns for the Trust
- Keeping records of all actions as Trustee
- Keeping beneficiaries informed throughout the administration of the Trust by providing an inventory, accounting, and answering questions of the beneficiaries
Like the PR and Financial Agent, the Successor Trustee is a fiduciary and therefore has a legal obligation to act in the best interests of the beneficiaries of the Trust.
If you are considering creating any of these documents, it is recommended that you speak with an estate planning attorney to ensure that your documents are valid and that they meets your specific needs.