For the first time in 15yrs, we are not celebrating our independence by walking in the Racine 4th of July parade. We are all sad about this and it underscores the uncertainty of 2020.
As we consider Independence Day 2020, a lesson we can learn from this year is that the future is uncertain. How do we protect ourselves, our family, and our businesses from a sudden loss of autonomy? This year in particular, many of us have had to face this type of concern head on. Is there a way to be more prepared? A durable power of attorney for can go a long way to help.
The durable power of attorney allows you to name someone who can make decisions for you if are unable. With the durable power of attorney for finances & property, your designated decision maker will have the authority to act on matters related to your finances and property on your behalf. For example, your agent will be able to pay your bills, manage your income and handle your affairs in the way you would want if you could not act independently. For your health care power of attorney, your agent has the authority to work with your medical team to make decisions about your health care.
Through your estate plan, your chosen decision maker will be able to fulfill your wishes if you cannot act for yourself.
What makes a power of attorney durable?
When you are working with Rebecca Mason to create your estate plan, is durability important? The durability provision means that it is able to be used in the event of your incapacity. This is a critical aspect to your estate plan. While a power of attorney is a vital tool in all respects, you will need it most in the event you cannot make your own decisions.
Power of attorney documents are just one facet of your comprehensive Wisconsin estate plan.
Wisconsin estate planning documents need to be properly witnessed. Wisconsin law requires witnesses to be in the “conscious presence” of the person signing a will. That has been interpreted to mean that witnesses must be present with the signer. Not observe the signing remotely through video conferencing. For a document to be notarized, the person must “appear before” the notary. This, too, has been interpreted to mean that a document must be notarized in person.
Many states allow remote witnessing and notarizing of estate planning documents. However Wisconsin does not currently.
Remote witnessing and notarizations would be helpful in the midst of the COVID-19 pandemic. Many of us are being careful to limit in-person interactions. However, information shared by social media and “do it yourself” estate planning websites, can be miss-leading as states have different rules. There is a high risk that people are getting bad information about how to properly execute their estate plan. Even the local newspaper recently printed misinformation that courts will accept a will without witnesses – which just isn’t true.
It is critical to work with a legal professional in the state where you reside. A Wisconsin resident could read this AARP article or the Journal Times article pictured above and use one of these do-it-yourself legal website or a template. As a result, the documents would not be valid without an appropriate witness/notary (Even with a remote witness).
With all this in mind, The State Bar of Wisconsin’s Real Property, Probate, and Trust Law Section filed an emergency request for a temporary order that would permit remote witnessing of certain estate planning documents in light of the COVID-19 pandemic.
However, the Court declined to issue an emergency ruling.
This is disappointing, but attorneys across Wisconsin will persist.
Since the COVID-19 pandemic first appeared in Wisconsin two months ago, lawyers across the state have been working hard to make sure our clients can safely execute their estate planning documents.
Due to safety concerns for our clients, Rebecca Mason Law is meeting by phone, FaceTime, and even Zoom. We share drafts electronically. We are conducting signings curbside outside our firm – or standing by the curb outside your home and observe you while you sign from the comfort of your own front porch.
Pubs in Ireland closed two days before St. Patrick’s Day. Schools and businesses across Wisconsin, the United States, and the world are closing. Professional and college sports have been cancelled. In Wisconsin, courts are closing until at least April 30 for many types of legal actions. While in situations like the grocery store, people are trying to impose some sort of social distancing protocol.
Now is not the time to panic. But it is the time to prepare. We are facing an unprecedented situation. It is difficult to know what to do and hard not to feel at least a little scared. The Coronavirus / COVID 19 seems to be taking over the entire globe at a rapid pace.
Estate Planning While Social Distancing
of us have a hard time sitting still in times of crisis. We like to do something to make the situation
a little bit better – for ourselves and for our community.
As a lawyer who specializes in estate planning and probate, I strongly recommend the following to be better prepared while you are social distancing yourself from others.
Make sure you have a Health Care Power of Attorney that is ready to work for you.
A Health Care Power of Attorney names a person who will advocate for your medical care if you become incapacitated.
You have the right to decide the quality
of life you want. Your Health Care POA
is the best way to direct your medical care if you are incapacitated.
If you have a Health Care POA, review it
and make sure the person you name as your agent is ready, willing, and able to
be your advocate. Make sure you have a backup
named who is also ready, willing, and able.
Upload it so you can access it on your phone. Email it to your agents and your
doctors. Carry a note in your wallet
with their contact information.
If you do not already have a
Health Care Power of Attorney, I strongly recommend you contact an attorney who
specializes in this area of law and schedule a phone appointment to get the
process moving. It is always better to work
with a professional with experience in this area of law. You will end up with a better product and ensure
that it is executed correctly. I have
seen many power of attorney documents that were not properly executed – which
becomes problematic if you are incapacitated and need someone to advocate for
However, if you are not able to meet with an attorney or cannot afford one, and if are a Wisconsin resident, you can download a state form here: Wisconsin Department of Health Services. I assume many other states have their own form. In Wisconsin, your Health Care Power of Attorney needs to be witnessed by two people. The witnesses must be over 18, neither can be your health care professional and neither can be named as your agent.
Execute a Revocable Living Trust (a “Trust”).
Having a Trust and avoiding the costly delay of a court-run probate just got a whole lot more important.
As health professional instruct us to stay home as much as possible. We do not know how the court system is going to function over coming months. If you are relying on a will (or don’t have an estate plan), your loved ones will likely have significant delay in accessing their inheritance as they wait for the courts to probate your estate.
In contrast, a Trust is a private
contract between you and your loved ones.
When you pass, your Trust assets seamlessly pass to your loved ones
without the hassle of the courts. If you
lose capacity, your successor trustee can step into your shoes and manage your
financial affairs. And while you are
alive and have capacity, you retain full control over your Trust assets.
You need to work with a professional to create and fund your Trust to ensure that it is done correctly. Too often I have clients come into my office thinking everything was handled because their deceased loved one had a Trust – only to find out that the assets were never put into the Trust and we have to go to court to probate the assets.
Check your beneficiary designations.
Financial assets and property can be transferred outside of probate through beneficiary designations. You can name someone to inherit your life insurance policies, your retirement accounts, and your bank accounts. You can also name someone to inherit your home and avoid probate of a significant asset.
designations can be a good way to transfer wealth and avoid the uncertainty of
the courts, there can be significant problems with relying on beneficiary
designations. The main problem with
relying on beneficiary designations instead of a Trust is that they do not
easily accommodate contingencies if a named beneficiary dies before you and
your estate might end up in probate anyway.
Many people are mistaken about who is actually named as their beneficiary. Maybe you set up your retirement account when you first got your job and before you were married. You could be disinheriting your spouse unintentionally.
Beneficiary designations are
also difficult because the person inheriting has to know they are the
beneficiary and what company to contact to obtain the funds.
If you are relying on beneficiary designations, double check to make sure the right people are named. It usually a simple process of calling the financial institution where your funds are held and asking them. I recommend asking them to mail you a confirmation as well so that you can give a copy to your beneficiaries.
Social Distancing: At least for the time being, life has changed significantly.
While we make sure we have enough food and figure out how to exist while social distancing, we can also make sure that our estate is in order. It seems that life is about to get a lot more difficult. But you can take some action to make sure that if things get really bad, your medical wishes will be followed and your estate is kept out of probate.
As the Coronavirus has progressed, there has been an increase in the number of people contacting our office to ensure their affairs are in order. All the media attention seems to have put estate planning back on the top of their to-do lists.
There is no way to know how the coronavirus will impact us in the long-term. But it sure has become impossible to ignore. Even my 8-year-old came home from school asking about it.
There seems to be no end to the advice. Don’t shake anyone’s hand. Press the elevator button with your knuckle. Wash your hands for at least 20 seconds. Stock up 3 weeks worth of food and medicine.
But is there anything you should be doing from a legal perspective during the Coronavirus outbreak?
Yes: You should review your estate plan. But not just because of Coronavirus. Estate planning is always important. And it is frequently something that gets de-prioritized. So I am hopeful that an upside to all this media coverage will be that it drives more people to create or update an estate plan.
If you have an estate plan, review it. Make sure it still accurately reflects your wishes. Importantly, make sure that the person you designated as your Agent in your Health Care Power of Attorney is still the right person. Your Health Care Agent ensures your wishes are honored in the event you lose the ability to do so. These documents give you the final say on your health care decisions and the quality of life you want. For many, this is the most important document in your estate plan.
Similarly, make sure that the person you name as you Agent on your Financial Power of Attorney is still the right person. This agent will help you with handling your financial affairs if you lose capacity.
As part of your estate plan review, it is also important to make sure your Personal Representative or Successor Trustee is able to serve and is still the best person to help you and re-evaluate the person you name to be Guardian of your minor children. It is also helpful to review your beneficiary designations and, if you have a trust, make sure your assets are owned by your trust.
And if anyone named in your documents has predeceased you, it is time for a revision.
If you are like many and don’t yet have an estate plan, perhaps now as we consider the Coronavirus it is a good time to put it closer to the top of your to-do list.
Thanksgiving can be a happy time to visit with your friends and family. People often take this time to reflect on what you have to be thankful for and often that is your loved ones.
It is also a perfect time to talk about your estate plan.
One of our clients started a tradition a few years back. On Thanksgiving after the meal is eaten and before too many drinks have been consumed, he sits down with the son who will eventually take over as successor trustee. He shows his son where he physically keeps his estate plan and other planning documents. Walks him through where all the family assets are held. He highlights what has changed over the previous year.
If you are fortunate enough to enjoy spending time with your family, why, you ask, would you interrupt the joy by talking about your death?
Why? Because your estate plan is a gift to them.
Take the time to think about all of your investments, real estate, and accounts. Contemplate all of your log-ins and passwords to your financials, your social media, and your digital libraries. Consider your monthly and annual expenses. Now imagine you are suddenly gone tomorrow. Would your husband or wife know what to do? Your daughter or life-long friend?
A friend was recently bemoaning the fact that her brother
left no will and a mess that she now had to clean up without any idea as to
what he wanted. She is living the
reality that your estate planning is – more than anything – a gift to your loved ones.
When you fail to organize your documents and execute your estate plan, you are leaving your loved ones in quite a predicament. We have opened probates that require us to call through every local bank and credit union trying to figure out where the deceased had accounts. We have had the surviving loved ones bring in boxes of financial documents not knowing whether their life insurance policies are still good, or whether retirement and investment accounts have been cashed out or rolled over into a different account.
Tracking down assets can be time-consuming and expensive. More importantly, you leave your loved ones
with an ever-present uncertainty. Did
they find everything? Are they wrapping
up your affairs the way you wanted?
The Holiday Season is upon us. When you gather, find a way to talk about your estate plan with your family. If you don’t have your plan yet, you may be able to get one before the holidays if you act now. It’s a good time to take the opportunity to start talking about how you want your things divided as a way to begin the process.
My husband and I try to instill in our children a love for nature. This photo is of our middle daughter, Amelia, as we hiked through Johnson Park in Racine last fall. Living in such a beautiful part of the world, it’s easy to spend hours outside with loved ones. We take the kids hiking and camping whenever we have a spare moment.
Not only do we get to experience nature, but we also unplug and experience each other without interruption.
As we consider Earth Day, we are proud that our love for nature is being passed on to our children. I am also proud to extend this ethos beyond our families weekend adventures. It has become a fundamental part of my firm’s estate planning practice.
Have you considered a green burial?
We routinely ask our clients if they have considered a green burial. A “green burial” is an Eco-friendly approach to burial. Traditional burial method fills your body with a formaldehyde solution and encases your body in a casket. Caskets are often not bio degradable.
During a green burial, your body is not embalmed. You are buried in a container that is 100 percent bio degradable. Sometimes no casket at all. The body is wrapped in a cloth. Did you know you can also choose to be buried with a tree sapling? This metaphorically and actually allows your body to become the tree.
What else can be done on Earth Day?
We also found ways to cut waste by offering a “paper-lite” estate plan. With the help of newer tech and our fantastic millennial staff, we have a secure portal. The secure portal allows us to share drafts and obtain client feedback without using paper. Our clients can also securely access their estate plan from literally anywhere in the world (as long as there is internet access).
In Wisconsin, the final Estate Plan needs to be signed to comply with state law. But digitizing large portions of the estate planning process can significantly reduce the use of paper and our impact on the earth. While at the same time improving the process.
We know these efforts are not huge changes. But each small change we make adds up.
Empty Bowl is a one-of-a-kind annual fundraiser. It brings the community together to enjoy the work of area artists, schools, bakeries, restaurants, entertainers and generous businesses. To raise funds that benefit the Racine County Food Bank and H.A.L.O. (Homeless Assistance Leadership Organization).
The purpose of the empty bowl is to remind the community that there is always an empty bowl somewhere. The event allows you to choose a handmade bowl and enjoy homemade soup from local chefs. During the event each year, there is live music, a silent auction, and a raffle.
Since the Racine event was created in 1997, more than $250,000 has been raised in support of the Homeless Assistance Leadership Organization and the Racine County Food Bank. Local students, artists, and citizens create one-of-a-kind handmade ceramic bowls; local restaurants and organizations prepare soups and slices of bread all served by local VIPs
Rebecca wrote this article 8 years ago on the recounts in Wisconsin. It provides some background and a deeper dive into the recount process. So today’s Throwback Thursday post is by our very own Rebecca Mason who wrote this back on April 20th of 2011.
Wisconsin election officials could
undertake the arduous task of recounting the results from the statewide April
5, 2011, election for Wisconsin Supreme Court justice. Whether Wisconsin
experiences another statewide recount, recounts play an important role in
Wisconsin’s electoral process. Attorney Rebecca Mason provides an overview of
the recount process, including how a candidate appeals the recount results.
Wisconsin election officials may
soon embark on the arduous task of recounting the results from the statewide
April 5, 2011, election for Wisconsin Supreme Court justice. The candidates
have until 5 p.m. on Wednesday, April 20, to ask the state to conduct a
recount. With Justice David Prosser having been declared the victor, any
request for a recount will come from candidate JoAnne Kloppenburg. At the time
of publication of this article, the Kloppenburg campaign had not announced
whether it would request a recount. If a recount is requested, it will begin at
9 a.m. on Thursday, April 21.
Although not unprecedented, there
rarely exists a reasonable possibility that the outcome of an election for
statewide office could be affected by an error in counting ballots. In fact,
the last time there was such a statewide recount was in the 1850s.1
In that case, William A. Barstow’s right to hold the office of Wisconsin
governor was called into question. After Barstow had received the certificate
of election and was sworn in as governor, the Wisconsin Supreme Court ruled
that he was not the rightful winner of the election.2
Whether Wisconsin experiences
another statewide recount, recounts play an important role in Wisconsin’s
Uncertain election results call into
question the winning candidate’s right to hold office. Moreover, this
uncertainty casts doubt on the legitimacy of the electoral process.3
A recount presents an opportunity to restore public trust in the system by
reviewing and evaluating what occurred on election day.
Election officials in Wisconsin have
much experience conducting recounts (at the local level and involving
referendum), and most recounts are resolved amicably and without litigation.
However, when stakes are high, this respectful and lawyer-free process could
give way to contentious litigation.
The Legal Path Forward
Importantly, a recount is the
exclusive means for a candidate to challenge the results of an election.4
In other words, if a candidate suspects fraud or illegal conduct, or a mistake
affected the outcome of the election, the candidate may not go directly to
court and must instead request a recount of the election results. A candidate
may appeal the results of a recount to the circuit court.
The statute and procedures for
conducting a recount in Wisconsin are detailed, demanding, and fast-paced, yet
have been interpreted such that the intent of the elector is paramount.
Accordingly, the recount strikes a balance between the need for finality in an
election against ensuring that the electors’ will is reflected in the election
The purpose of a recount is to count
all the votes cast in an election again to assure that all legal votes are
counted, all illegal votes are not counted, proper procedures for conducting
the election were followed by the election officials, and no mistakes were
committed during the original official count of the ballots (the “canvass”). It
is difficult, although not impossible, to change the outcome of an election
through a recount.
In what may
have been a surprise to some members of the public, the numbers reported to
media outlets on election night provide only preliminary election results.5
The official vote count does not actually begin until the day after election
In an election for state office,7
the county board of canvassers – comprised of the county clerk and two
additional election officials, one Democrat and one Republican, appointed by
– conducts a canvass of the votes cast on election day.9
When the margin between the vote totals
received by competing candidates is slim, a candidate has the opportunity to
request a recount to ensure that all ballots cast were counted appropriately
and that the outcome of the election properly reflects the will of the
electors. A candidate has three business days following the completion of the
official canvass to request a recount.10
Wisconsin’s recount procedures ensure
there is no delay in conducting a recount once requested by a candidate.
Indeed, the latest a recount may begin is 9 a.m. on the day following the
deadline for filing the recount petition.11
If this day falls on a Saturday or holiday, the Government Accountability Board
(GAB) recommends beginning the recount on that Saturday or holiday.12
The recount must be completed within 13 days.13
Discussions with current election officials reveal that, at least some
officials, have been forewarned that if a recount is requested by one of the
candidates in the April 5 supreme court election, the officials should plan to
work on and through the upcoming Easter Sunday.
There are several steps to a
recount, outlined in great detail in Section 9.01 of the Wisconsin Statutes,
prior to actually recounting the votes cast in an election.
After ensuring that all electronic
equipment used to count votes functioned without error, the board of canvassers14
first determines the number of voters, and then make sure that the number of
ballots does not exceed the total number of voters.
To determine the number of voters,
the board of canvassers compares the poll lists and eliminates any
discrepancies – that is, the number of voters listed on each poll list must
match, be sequential, and without duplicates.15
After completing the review of the poll lists, the board examines the absentee
ballot envelopes to determine whether they substantially comply with the
This review of the poll lists and absentee ballots establishes the number of
voters who voted on election day.
The canvassers process
The board of canvassers then counts
the number of ballots, using the same method used on election day.17
If the number of ballots exceeds the number of voters, the statutes provide a
detailed method of “drawing down” the number of ballots.18
The process of drawing down the ballots requires the board of canvassers to
first remove ballots with facial infirmities (for example, blank ballots or
ballots that do not contain the initials of two inspectors).19
If the number of ballots still exceeds the number of electors, the process
concludes with the board placing any remaining ballots in a ballot bag and
randomly drawing out, without inspecting the ballot (i.e., without knowing
which candidate is supported on that ballot), the remaining number of ballots
equal to the number of excess ballots.20
As a result, the pool of ballots that are actually counted to determine the
victor may be winnowed down by random draw.
When does the recount start?
Once the number of ballots equals
the number of voters, the board of canvassers counts the votes.21
In other words, the recount of votes cast in the election actually begins at
this point in the process. During this count, if questions arise about the
intent of the elector, poll workers are instructed to attempt to determine the
intent and give effect to that intent if it can be determined.22
The public is allowed to observe all
aspects of a recount. The board of canvassers keeps detailed written minutes of
all aspects of the recount, which includes all actions taken, all objections
and all evidence presented.24
The minutes become part of the record reviewed by the circuit court in case the
recount result is appealed.
recount results to the circuit court
A candidate has the right to appeal
the results of a recount in circuit court within five days of the completion of
If the recount is held in a voting district that spans more than one judicial
district, the chief justice of the Wisconsin Supreme Court appoints a circuit
court judge (a reserve judge, if available) to hear the appeal.26
Any appeal of the recount results is heard by the circuit court judge, without
a jury, in an expedited fashion.27
An appeal of a recount is the only
means by which a candidate may go to court to contest any part of the recount
or election. A party appealing the recount results must establish, through
evidence, that: 1) a mistake, fraud, defect, irregularity, or illegality was
committed during the voting, canvassing, or recount process; 2) the offending
conduct led to votes being improperly included in or excluded from the election
results; and (3) the number of disputed votes exceeds the margin by which the
prevailing candidate won.28
The Circuit Courts Role
The circuit court will affirm the
county board of canvassers’ determination, unless the court concludes that the
board of canvassers erroneously interpreted state law or any finding of fact by
the board is not supported by substantial evidence.29
The court’s review of the recount is
limited to the evidence offered to the board of canvassers during the recount,
unless the evidence was unavailable to a party exercising due diligence.30
Put another way, a party who fails to object or offer evidence of a defect or
irregularity during the recount waives the right to object or offer such
evidence in court, unless the evidence was unavailable to a party exercising
due diligence or the evidence is newly discovered.
In voting districts that span more
than one judicial district, an appeal of the circuit court’s decision is
assigned to District 4 of the Wisconsin Court of Appeals.31
Rebecca Mason was a litigation attorney at Godfrey & Kahn S.C., Milwaukee, when this piece was written. She practiced political and constitutional law at the time. Rebecca has since formed Rebecca Mason Law, and has been laser focused on protecting her client’s rights in her thriving Elder Law practice in Racine, WI. Contact Rebecca at firstname.lastname@example.org
7 This article provides a summary of Wisconsin’s recount laws.
The procedures leading up to a recount vary, albeit slightly, depending on
whether the recount involves a referendum question, state or national candidate,
or local candidate. Because the impetus for this article is the recent election
involving a state elective office, the article is tailored accordingly.
8 Wis. Stat. § 7.60(2).
9 Wis. Stat. § 7.60(3).
10 Wis. Stat. § 9.01(1)(a). Only a candidate may file a
recount petition relating to an election. In the case of a referendum, any
elector who voted in the referendum election may file a petition to request a
11 Wis. Stat. § 9.01(1)(ar)(3).
12 G.A.B. Election Recount Procedures manual, May 20, 2009, p.
13 Wis. Stat. § 9.01(1)(ar).
14 In a recount for state office, the county boards of
canvassers (the same entity that conducted the initial canvass) conducts the
15 Wis. Stat. § 9.01(1)(b).
22 Wisconsin courts have construed election laws as directory
rather than mandatory in order to give effect to the will of the electors. Lanser
v. Koconis, 62 Wis. 2d 86, 214 N.W.2d 425 (1974).
23 Along with challenging the eligibility of a voter,
candidates may also object to: 1) the recount itself; 2) the composition of the
board of canvassers; 3) the procedures followed by the board of canvassers; and
4) any other issues presented to the board during the recount. Wis. Stat. §
24 Wis. Stat. § 9.01(5).
25 Wis. Stat. § 9.01(6), (7), (8); Gradinjan v. Boho,
29 Wis. 2d 674, 139 N.W.2d 557 (1966). The G.A.B. may not certify election
results until the deadline for filing all appeals has passed.
26 Wis. Stat. § 9.01(6)(b). This judge may be appointed before
the recount is completed if a judicial determination is needed on any issues
raised during the recount. Id.
27 Wis. Stat. § 9.01(7). This same judge will be
appointed earlier in the process to adjudicate legal issues, should they arise
during the recount.