LRB-5238/1 KMS:amn 2023 - 2024 LEGISLATURE 2023 ASSEMBLY BILL 985 January 25, 2024 - Introduced by Representatives TUSLER, BALDEH, BEHNKE, DOYLE, KITCHENS, O'CONNOR, RATCLIFF, RETTINGER and SUBECK, cosponsored by Senators BALLWEG and FEYEN. Referred to Committee on Family Law. ***AUTHORS SUBJECT TO CHANGE*** AN ACT to amend 154.30 (8) (d) 2.; to repeal and recreate 244.05; and to create 140.147, 154.03 (1) (e), 154.03 (3), 154.30 (8m), 155.10 (3) and 853.03 (2) (c) of the statutes; relating to: electronic and remote witnessing and notarization of estate planning documents. Analysis by the Legislative Reference Bureau Under current law, an individual executing an estate planning document that requires a notarial act must appear personally before a notarial officer. In addition, current law requires an individual executing a declaration to health care professionals, an authorization for final disposition, or a power of attorney for health care to sign the document in the presence of two witnesses, in addition to certain other requirements. Current law also requires an individual executing a will to sign the will, acknowledge the will, or acknowledge the individual's signature on the will in the conscious presence of two witnesses. This bill makes several changes to the notarization and witnessing requirements for these documents. Specifically, under the bill, a declaration of health care professionals may be witnessed only by individuals who are at least 18 years of age. In addition, under the bill, an individual may execute a power of attorney for finances and property by signing the document before two witnesses via two-way, real-time audiovisual communication according to the requirements detailed below, whereas, under current law, an individual may execute a power of attorney for finances and property only by acknowledging the document before a notarial officer. Additionally, under current law, if an individual executing an 1 2 3 4 - 2 -2023 - 2024 Legislature LRB-5238/1 KMS:amn ASSEMBLY BILL 985 authorization for final disposition is physically unable to sign the authorization, another individual may sign the authorization on his or her behalf; the bill specifies that, in these situations, the signing individual must be at least 18 years of age and must sign in the physical presence of the individual executing the authorization. The bill authorizes remote notarization of an estate planning document and remote witnessing of a declaration to health care professionals, an authorization for final disposition, a power of attorney for health care, a power of attorney for finances and property, or a will via two-way, real-time audiovisual communication if a remotely located individual, declarant, person executing a power of attorney for health care (principal), or testator, or an individual signing on that person's behalf, signs the document in accordance with the following requirements: 1. The signing is supervised by an attorney. 2. The remotely located individual, declarant, principal, or testator is physically located in this state during the two-way, real-time audiovisual communication. 3. Each notary public or remote witness, as applicable, attests to being physically located in this state during the two-way, real-time audiovisual communication. 4. The remotely located individual, declarant, principal, or testator and each remote witness, as applicable, is positively identified. 5. The remotely located individual, declarant, principal, or testator identifies anyone else present in the same physical location as the remotely located individual, declarant, principal, or testator. 6. The remotely located individual, declarant, principal, or testator displays the document; confirms the number of pages in the document and the page number on which the signature is to be affixed; and declares to the notary public or remote witnesses, as applicable, and the supervising attorney that the remotely located individual, declarant, principal, or testator is 18 years of age or older and that the document is being executed as a voluntary act. 7. The remotely located individual, declarant, principal, or testator, or another individual 18 years of age or older authorized to sign on that person's behalf in that person's physical presence, signs the document in a manner that allows the notary public or remote witnesses, as applicable, and supervising attorney to see the signing. 8. The audiovisual communication technology allows communication by which a person is able to see, hear, and communicate in an interactive way with another person in real time using electronic means, except that if the remotely located individual, declarant, principal, or testator, the notary public or remote witnesses, as applicable, or the supervising attorney has an impairment that affects hearing, sight, or speech, assistive technology or learned skills may be substituted for audio or visual if it allows that person to actively participate in the signing in real time. 9. The document indicates that it is being executed pursuant to these requirements. - 3 -2023 - 2024 Legislature LRB-5238/1 KMS:amn ASSEMBLY BILL 985 10. The document is signed by the remotely located individual, declarant, principal, or testator and the notary or remote witnesses, as applicable, and delivered to the supervising attorney. 11. The supervising attorney completes and attaches to the document an affidavit of compliance that contains certain information and serves as conclusive evidence that the document was executed in compliance with the requirements under the bill. The people of the state of Wisconsin, represented in senate and assembly, do enact as follows: SECTION 1. 140.147 of the statutes is created to read: 140.147 Notarial act performed for remote execution of estate planning documents. (1) In this section: (a) “Estate planning document” means any of the following: 1. A will or a codicil. 2. A declaration of trust or other document creating a trust as provided in s. 701.0401 or an amendment to a declaration of trust or other document creating a trust. 3. A certification of trust as provided in s. 701.1013. 4. A power of attorney for finances and property. 5. A power of attorney for health care. 6. A marital property agreement or an amendment to a marital property agreement. 7. A written instrument evidencing a nonprobate transfer pursuant to s. 705.10, 705.15, 705.18, or 766.58 (3) (f). 8. A declaration to health care professionals. 9. An authorization for final disposition. 10. An authorization for use and disclosure of protected health information. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 - 4 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 1 ASSEMBLY BILL 985 11. An instrument of disclaimer under s. 854.13. 12. An instrument exercising a power of appointment under ch. 702. (b) “Remotely located individual” means an individual who is not in the physical presence of the notary public who performs the notarial act pursuant to this section. (c) “Sign” means, with respect to a remotely located individual, the execution of an estate planning document that is required or intended to be executed in the presence of a notary public. (2) (a) An estate planning document may not be denied legal effect or enforceability relating to a transaction solely because a notarial act was performed in compliance with this section. (b) Except as provided in par. (a), this section shall not apply to, or impact the legal effect or enforceability of, any electronic records or electronic signatures governed by ch. 137. (3) For purposes of signing an estate planning document, a remotely located individual may comply with s. 140.06 by appearing before a notary public via 2-way, real-time audiovisual communication technology if all of the following requirements are satisfied: (a) The signing is supervised by an attorney in good standing licensed to practice law in this state. The supervising attorney may serve as the notary public. (b) The remotely located individual attests to being physically located in this state during the 2-way, real-time audiovisual communication. (c) The notary public attests to being physically located in this state during the 2-way, real-time audiovisual communication. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 - 5 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 1 ASSEMBLY BILL 985 (d) The remotely located individual positively confirms the remotely located individual's identity. If the remotely located individual is not personally known to the notary public and the supervising attorney, the remotely located individual shall provide satisfactory evidence of the remotely located individual's identity as provided in s. 140.07. (e) The remotely located individual identifies anyone else present in the same physical location as the remotely located individual. If possible, the remotely located individual shall make a visual sweep of the remotely located individual's physical surroundings so that the notary public and the supervising attorney can confirm the presence of any other persons. (f) The remotely located individual displays the estate planning document, confirms the total number of pages and the page number on which the remotely located individual's signature is to be affixed, and declares to the notary public and the supervising attorney that the remotely located individual is 18 years of age or older, that the document is the remotely located individual's estate planning document, and that the document is being executed as a voluntary act. (g) The remotely located individual, or another individual 18 years of age or older authorized to sign on behalf of the remotely located individual at the express direction and in the physical presence of the remotely located individual, signs the estate planning document in a manner that allows the notary public and the supervising attorney to see the signing. If the estate planning document is signed by someone on behalf of the remotely located individual, the signing shall comply with s. 140.09. (h) The audiovisual communication technology used allows communication by which a person is able to see, hear, and communicate in an interactive way with 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 6 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 1 ASSEMBLY BILL 985 another person in real time using electronic means, except that if the remotely located individual, the notary public, or the supervising attorney has an impairment that affects hearing, sight, or speech, assistive technology or learned skills may be substituted for audio or visual if it allows that person to actively participate in the signing in real time. (i) The estate planning document indicates that it is being executed pursuant to this section. (j) One of the following occurs: 1. The remotely located individual, or another person at the direction of the remotely located individual, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original estate planning document to the supervising attorney within a reasonable time after the signing. The supervising attorney then personally delivers or transmits by U.S. mail or commercial courier service the entire signed original estate planning document to the notary public within a reasonable time. The notary public then performs the intended notarial act and forwards the entire original estate planning document by personal delivery or U.S. mail or commercial courier service to the supervising attorney within a reasonable time. 2. The remotely located individual, or another person at the direction of the remotely located individual, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original estate planning document to the supervising attorney within a reasonable time after the signing and transmits by facsimile or electronic means a legible copy of the entire signed estate planning document directly to the notary public within a reasonable time after the signing. The notary public then performs the intended notarial act and personally delivers 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 7 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 1 ASSEMBLY BILL 985 or transmits by U.S. mail or commercial courier service the entire signed copy of the estate planning document to the supervising attorney within a reasonable time. The signed original and signed copy together shall constitute one original document unless the supervising attorney, within a reasonable time after receiving the signed original and signed copy, compiles the signed original and signed copy into one document by attaching the page or pages containing the notarial act to the original signed by or on behalf of the remotely located individual, in which case the compiled document shall constitute the original. 3. The remotely located individual, or another person at the express direction of the remotely located individual, and the notary public sign identical copies of the original estate planning document. The remotely located individual, or another person at the direction of the remotely located individual, and the notary public personally deliver or transmit by U.S. mail or commercial courier service the signed originals to the supervising attorney within a reasonable time after the signing and performance of the notarial act. All of the originals together shall constitute one document unless the supervising attorney, within a reasonable time after receiving all signed originals, compiles the originals into one document by attaching the page or pages containing the notarial act to the original signed by or on behalf of the remotely located individual, in which case the compiled document shall constitute the original. (k) The supervising attorney completes and attaches to the estate planning document an affidavit of compliance that contains the following information: 1. The name and residential address of the remotely located individual. 2. The name and residential or business address of the notary public. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 - 8 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 1 ASSEMBLY BILL 985 3. The address within the state where the remotely located individual was physically located at the time that the estate planning document was signed by the remotely located individual or another individual on behalf of the remotely located individual. 4. The address within the state where the notary public was physically located at the time the notary public witnessed the remotely located individual's signing of the estate planning document. 5. A statement that the remotely located individual and notary public were known to each other and the supervising attorney or a description of the form of identification used to confirm the identity of the remotely located individual. 6. The identity of anyone else present in the same physical location as the remotely located individual during the signing. 7. Confirmation that the remotely located individual declared that the remotely located individual is 18 years of age or older, that the document is the remotely located individual's estate planning document, and that the document was being executed as the remotely located individual's voluntary act. 8. Confirmation that the notary public and the supervising attorney were able to see the remotely located individual, or an individual 18 years of age or older at the express direction and in the physical presence of the remotely located individual, sign, and that the remotely located individual appeared to be 18 years of age or older and acting voluntarily. 9. A description of the audiovisual technology used for the signing process. 10. If the estate planning document was not signed in counterpart, a description of the method used to forward the estate planning document to the notary public and to the supervising attorney upon completion of the signing process. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 9 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 1 ASSEMBLY BILL 985 11. If the estate planning document was signed in counterpart, a description of the method used to forward each counterpart to the supervising attorney and, if applicable, how and when the supervising attorney physically compiled the signed paper counterparts into a single document. 12. The name, state bar number, and business or residential address of the supervising attorney. 13. Any other information that the supervising attorney considers to be material with respect to the remotely located individual's capacity to sign a valid estate planning document, the remotely located individual's and notary public's compliance with this section, or any other information that the supervising attorney deems relevant to the signing of the estate planning document. (4) An affidavit of compliance completed and attached to the estate planning document pursuant to sub. (3) (k) shall serve as conclusive evidence that the estate planning document was executed in compliance with this section. (5) An affidavit of compliance shall be in substantially the following form: AFFIDAVIT OF COMPLIANCE State of .... County of .... The undersigned, being first duly sworn under oath, states as follows: This Affidavit of Compliance is executed pursuant to Wis. Stat. § 140.147 to document the signing of the [name of estate planning document] of [name of remotely located individual] via remote appearance by 2-way, real-time audiovisual communication technology on [date]. 1. The name and residential address of the remotely located individual is .... 2. The name and [residential or business] address of the notary public is .... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 10 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 1 ASSEMBLY BILL 985 3. The address within the state of Wisconsin where the remotely located individual was physically located at the time the remotely located individual signed the estate planning document is .... 4. The address within the state of Wisconsin where the notary public was physically located at the time the notary public witnessed the remotely located individual's signing of the estate planning document is .... 5. The remotely located individual and notary public were known to each other and to the supervising attorney. - OR - The remotely located individual and notary public were not known to each other and to the supervising attorney. The remotely located individual produced the following form of photo identification to confirm his or her identity: .... 6. The following persons were in the same physical location as the remotely located individual during the signing: .... 7. The remotely located individual declared that the remotely located individual is 18 years of age or older, that the document is the remotely located individual's [name of estate planning document], and that the document was being executed as the remotely located individual's voluntary act. 8. The notary public and the supervising attorney were able to see the remotely located individual sign or another individual on behalf of the remotely located individual sign. The remotely located individual appeared to be 18 years of age or older and acting voluntarily. 9. The audiovisual technology used for the signing process was .... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 - 11 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 1 ASSEMBLY BILL 985 10. The estate planning document was not signed in counterpart. The following methods were used to forward the estate planning document to the notary public and to the supervising attorney after signing. - OR - The estate planning document was signed in counterpart. The following methods were used to forward each counterpart to the supervising attorney. [If applicable] - The supervising attorney physically compiled the signed paper counterparts into a single document containing the estate planning document, the signature of the remotely located individual, and the notarial act on [date] by [e.g., attaching page 7 from each counterpart signed by the notary public to the back of the estate planning document signed by the remotely located individual]. 11. The name, state bar number, and [business or residential] address of the supervising attorney is .... 12. [Optional] Other information that the supervising attorney considers to be material is as follows: .... .... (signature of supervising attorney) Subscribed and sworn to before me on .... (date) by .... (name of supervising attorney). .... (signature of notarial officer) Stamp .... (Title of office) [My commission expires: ....] (6) If a supervising attorney is required to complete an affidavit in order to execute an estate planning document pursuant to another provision of law, the information required in that affidavit may be combined with the information required in the affidavit of compliance into a single affidavit. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 12 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 1 ASSEMBLY BILL 985 (7) For a notarial act performed under this section, the certificate of notarial act required under s. 140.15 may be in the following short form, if completed with the information required by s. 140.15 (1) and (2): State of .... County of .... This record was virtually acknowledged before me pursuant to Wis. Stat. § 140.147 on .... (date) by .... (name(s) of individual(s)). .... (signature of notarial officer) Stamp .... (Title of office) [My commission expires: ....] SECTION 2. 154.03 (1) (e) of the statutes is created to read: 154.03 (1) (e) Under the age of 18. SECTION 3. 154.03 (3) of the statutes is created to read: 154.03 (3) For purposes of this section, “presence” includes the simultaneous remote appearance by 2-way, real-time audiovisual communication technology if all of the following conditions are satisfied: (a) The signing is supervised by an attorney in good standing licensed by this state. The supervising attorney may serve as one of the remote witnesses. (b) The declarant attests to being physically located in this state during the 2-way, real-time audiovisual communication. (c) Each remote witness attests to being physically located in this state during the 2-way, real-time audiovisual communication. (d) The declarant and each of the remote witnesses identify themselves. If the declarant and remote witnesses are not personally known to each other and to the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 13 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 3 ASSEMBLY BILL 985 supervising attorney, the declarant and each of the remote witnesses display photo identification. (e) The declarant identifies anyone else present in the same physical location as the declarant and, if possible, the declarant makes a visual sweep of the declarant's physical surroundings so that the supervising attorney and each remote witness can confirm the presence of any other person. (f) The declarant displays the declaration to health care professionals, confirms the total number of pages and the page number of the page on which the declarant's signature will be affixed, and declares to the remote witnesses and the supervising attorney all of the following: 1. That the declarant is 18 years of age or older. 2. That the document is a declaration to health care professionals. 3. That the document is being executed as a voluntary act. (g) The declarant, or an individual 18 years of age or older at the express direction and in the physical presence of the declarant, dates and signs the declaration to health care professionals in a manner that allows each of the remote witnesses and the supervising attorney to see the execution. (h) The audiovisual communication technology used allows communication by which a person is able to see, hear, and communicate in an interactive way with another person in real time using electronic means, except that if the declarant, a remote witness, or the supervising attorney has an impairment that affects hearing, sight, or speech, assistive technology or learned skills may be substituted for audio or visual if it allows that person to actively participate in the signing in real time. (i) The declaration to health care professionals indicates that it is being executed pursuant to this subsection. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 14 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 3 ASSEMBLY BILL 985 (j) One of the following occurs: 1. The declarant, or another person at the direction of the declarant, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original declaration to health care professionals to the supervising attorney within a reasonable time after execution. The supervising attorney then personally delivers or transmits by U.S. mail or commercial courier service the entire signed original declaration to health care professionals to the remote witnesses within a reasonable time. The first remote witness to receive the original declaration to health care professionals signs and dates the original declaration to health care professionals as a witness and forwards the entire signed original declaration to health care professionals by personal delivery or U.S. mail or commercial courier service within a reasonable time to the 2nd remote witness, who signs and dates it as a witness and forwards the entire signed original declaration to health care professionals by personal delivery or U.S. mail or commercial courier service within a reasonable time to the supervising attorney. 2. The declarant, or another person at the direction of the declarant, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original declaration to health care professionals to the supervising attorney within a reasonable time after execution, and transmits by facsimile or electronic means a legible copy of the entire signed declaration to health care professionals directly to each remote witness within a reasonable time after execution. Each remote witness then signs the transmitted copy of the declaration to health care professionals as a witness and personally delivers or transmits by U.S. mail or commercial courier service the entire signed copy of the declaration to health care professionals to the supervising attorney within a reasonable time after witnessing. The signed original 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 15 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 3 ASSEMBLY BILL 985 and signed copies together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving the signed original and signed copies, compiles the signed original and signed copies into one document by attaching the signature pages of each remote witness to the original signed by or on behalf of the declarant, in which case the compiled document shall constitute the original. 3. The declarant and each of the remote witnesses sign identical copies of the original. The declarant, or another person at the direction of the declarant, and each of the remote witnesses personally deliver or transmit by U.S. mail or commercial courier service the signed originals to the supervising attorney within a reasonable time after execution. All of the signed originals together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving all signed originals, compiles the originals into one document by attaching the signature pages of each remote witness to the original signed by or on behalf of the declarant, in which case the compiled document shall constitute the original. (k) The supervising attorney completes an affidavit of compliance that contains the following information: 1. The name and residential address of the declarant. 2. The name and residential or business address of each remote witness. 3. The address within this state where the declarant was physically located at the time the declarant signed the declaration to health care professionals. 4. The address within this state where each remote witness was physically located at the time the remote witness witnessed the declarant's execution of the declaration to health care professionals. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 - 16 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 3 ASSEMBLY BILL 985 5. A statement that the declarant and remote witnesses were all known to each other and the supervising attorney or a description of the form of photo identification used to confirm the identity of the declarant and each remote witness. 6. Confirmation that the declarant declared that the declarant is 18 years of age or older, that the document is the declarant's declaration to health care professionals, and that the document was being executed as the declarant's voluntary act. 7. Confirmation that each of the remote witnesses and the supervising attorney were able to see the declarant, or an individual 18 years of age or older at the express direction and in the physical presence of the declarant, sign, and that the declarant appeared to be 18 years of age or older and acting voluntarily. 8. A description of the audiovisual technology used for the signing process. 9. If the declaration to health care professionals was not signed in counterpart, a description of the method used to forward the declaration to health care professionals to each remote witness for signing and to the supervising attorney after signing. 10. If the declaration to health care professionals was signed in counterpart, a description of the method used to forward each counterpart to the supervising attorney and, if applicable, how and when the supervising attorney physically compiled the signed paper counterparts into a single document containing the declaration to health care professionals, the signature of the declarant, and the signatures of the remote witnesses. 11. The name, state bar number, and business or residential address of the supervising attorney. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 - 17 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 3 ASSEMBLY BILL 985 12. Any other information that the supervising attorney considers to be material with respect to the declarant's capacity to sign a valid declaration to health care professionals, the declarant's and witnesses' compliance with this section, or any other information that the supervising attorney deems relevant to the execution of the declaration to health care professionals. (L) The affidavit of compliance is attached to the declaration to health care professionals. (m) An affidavit of compliance described in this subsection shall be substantially in the following form: AFFIDAVIT OF COMPLIANCE State of .... County of .... The undersigned, being first duly sworn under oath, states as follows: This Affidavit of Compliance is executed pursuant to Wis. Stat. § 154.03 (3) to document the execution of the declaration to health care professionals of [name of declarant] via remote appearance by 2-way, real-time audiovisual communication technology on [date]. 1. The name and residential address of the declarant is .... 2. The name and [residential or business] address of remote witness 1 is .... 3. The name and [residential or business] address of remote witness 2 is .... 4. The address within the state of Wisconsin where the declarant was physically located at the time the declarant signed the declaration to health care professionals is .... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 - 18 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 3 ASSEMBLY BILL 985 5. The address within the state of Wisconsin where remote witness 1 was physically located at the time the remote witness witnessed the declarant's execution of the declaration to health care professionals is .... 6. The address within the state of Wisconsin where remote witness 2 was physically located at the time the remote witness witnessed the declarant's execution of the declaration to health care professionals is .... 7. The declarant and remote witnesses were all known to each other and to the supervising attorney. - OR - The declarant and remote witnesses were not all known to each other and to the supervising attorney. Each produced the following form of photo identification to confirm his or her identity: .... 8. The declarant declared that the declarant is 18 years of age or older, that the document is the declarant's declaration to health care professionals, and that the document was being executed as the declarant's voluntary act. 9. Each of the remote witnesses and the supervising attorney were able to see the declarant sign. The declarant appeared to be 18 years of age or older and acting voluntarily. 10. The audiovisual technology used for the signing process was .... 11. The declaration to health care professionals was not signed in counterpart. The following methods were used to forward the declaration to health care professionals to each remote witness for signing and to the supervising attorney after signing. - OR - The declaration to health care professionals was signed in counterpart. The following methods were used to forward each counterpart to the supervising attorney. [If applicable] - The supervising attorney physically compiled the signed paper counterparts into a single document containing the declaration to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 19 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 3 ASSEMBLY BILL 985 health care professionals, the signature of the declarant, and the signatures of the remote witnesses on [date] by [e.g., attaching page 7 from each counterpart signed by a remote witness to the back of the declaration to health care professionals signed by the declarant]. 12. The name, state bar number, and [business or residential] address of the supervising attorney is .... 13. [Optional] Other information that the supervising attorney considers to be material is as follows: .... .... (signature of supervising attorney) Subscribed and sworn to before me on .... (date) by .... (name of supervising attorney). .... (signature of notarial officer) Stamp .... (Title of office) [My commission expires: ....] SECTION 4. 154.30 (8) (d) 2. of the statutes is amended to read: 154.30 (8) (d) 2. Be signed and dated by the declarant, with the signature witnessed by 2 witnesses who each have attained age 18 and who are not related by blood, marriage, or adoption to the declarant, or acknowledged before a notary public. If the declarant is physically unable to sign an authorization for final disposition, the authorization shall be signed in the declarant's name by an individual 18 years of age or older at the declarant's express direction and in his or her physical presence; such a proxy signing shall take place or be acknowledged by the declarant in the presence of 2 witnesses or a notary public. SECTION 5. 154.30 (8m) of the statutes is created to read: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 20 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 5 ASSEMBLY BILL 985 154.30 (8m) REMOTE EXECUTION. For purposes of sub. (8) (d) 2., “witnessed by” and “in the presence of” include the simultaneous remote appearance by 2-way, real-time audiovisual communication technology if all of the following conditions are satisfied: (a) The signing is supervised by an attorney in good standing licensed by this state. The supervising attorney may serve as one of the remote witnesses. (b) The declarant attests to being physically located in this state during the 2-way, real-time audiovisual communication. (c) Each remote witness attests to being physically located in this state during the 2-way, real-time audiovisual communication. (d) The declarant and each of the remote witnesses identify themselves. If the declarant and remote witnesses are not personally known to each other and to the supervising attorney, the declarant and each of the remote witnesses display photo identification. (e) The declarant identifies anyone else present in the same physical location as the declarant and, if possible, the declarant makes a visual sweep of the declarant's physical surroundings so that the supervising attorney and each remote witness can confirm the presence of any other person. (f) The declarant displays the authorization for final disposition, confirms the total number of pages and the page number of the page on which the declarant's signature will be affixed, and declares to the remote witnesses and the supervising attorney all of the following: 1. That the declarant is 18 years of age or older. 2. That the document is an authorization for final disposition. 3. That the document is being executed as a voluntary act. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 21 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 5 ASSEMBLY BILL 985 (g) The declarant, or an individual 18 years of age or older at the express direction and in the physical presence of the declarant, dates and signs the authorization for final disposition in a manner that allows each of the remote witnesses and the supervising attorney to see the execution. (h) The audiovisual communication technology used allows communication by which a person is able to see, hear, and communicate in an interactive way with another person in real time using electronic means, except that if the declarant, a remote witness, or the supervising attorney has an impairment that affects hearing, sight, or speech, assistive technology or learned skills may be substituted for audio or visual if it allows that person to actively participate in the signing in real time. (i) The authorization for final disposition indicates that it is being executed pursuant to this subsection. (j) One of the following occurs: 1. The declarant, or another person at the direction of the declarant, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original authorization for final disposition to the supervising attorney within a reasonable time after execution. The supervising attorney then personally delivers or transmits by U.S. mail or commercial courier service the entire signed original authorization for final disposition to the remote witnesses within a reasonable time. The first remote witness to receive the original authorization for final disposition signs and dates the original authorization for final disposition as a witness and forwards the entire signed original authorization for final disposition by personal delivery or U.S. mail or commercial courier service within a reasonable time to the 2nd remote witness, who signs and dates it as a witness and forwards the entire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 - 22 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 5 ASSEMBLY BILL 985 signed original authorization for final disposition by personal delivery or U.S. mail or commercial courier service within a reasonable time to the supervising attorney. 2. The declarant, or another person at the direction of the declarant, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original authorization for final disposition to the supervising attorney within a reasonable time after execution, and transmits by facsimile or electronic means a legible copy of the entire signed authorization for final disposition directly to each remote witness within a reasonable time after execution. Each remote witness shall then sign the transmitted copy of the authorization for final disposition as a witness and personally deliver or transmit by U.S. mail or commercial courier service the entire signed copy of the authorization for final disposition to the supervising attorney within a reasonable time after witnessing. The signed original and signed copies together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving the signed original and signed copies, compiles the signed original and signed copies into one document by attaching the signature pages of each remote witness to the original signed by or on behalf of the declarant, in which case the compiled document shall constitute the original. 3. The declarant and each of the remote witnesses sign identical copies of the original. The declarant, or another person at the direction of the declarant, and each of the remote witnesses personally deliver or transmit by U.S. mail or commercial courier service the signed originals to the supervising attorney within a reasonable time after execution. All of the signed originals together shall constitute one original document unless the supervising attorney, within a reasonable time after receiving all signed originals, compiles the originals into one document by attaching the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 23 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 5 ASSEMBLY BILL 985 signature pages of each remote witness to the original signed by the declarant, in which case the compiled document shall constitute the original. (k) The supervising attorney completes an affidavit of compliance that contains the following information: 1. The name and residential address of the declarant. 2. The name and residential or business address of each remote witness. 3. The address within this state where the declarant was physically located at the time the declarant signed the authorization for final disposition. 4. The address within this state where each remote witness was physically located at the time the remote witness witnessed the declarant's execution of the authorization for final disposition. 5. A statement that the declarant and remote witnesses were all known to each other and the supervising attorney or a description of the form of photo identification used to confirm the identity of the declarant and each remote witness. 6. Confirmation that the declarant declared that the declarant is 18 years of age or older, that the document is the declarant's authorization for final disposition, and that the document was being executed as the declarant's voluntary act. 7. Confirmation that each of the remote witnesses and the supervising attorney were able to see the declarant, or an individual 18 years of age or older at the express direction and in the physical presence of the declarant, sign, and that the declarant appeared to be 18 years of age or older and acting voluntarily. 8. A description of the audiovisual technology used for the signing process. 9. If the authorization for final disposition was not signed in counterpart, a description of the method used to forward the authorization for final disposition to each remote witness for signing and to the supervising attorney after signing. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 24 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 5 ASSEMBLY BILL 985 10. If the authorization for final disposition was signed in counterpart, a description of the method used to forward each counterpart to the supervising attorney and, if applicable, how and when the supervising attorney physically compiled the signed paper counterparts into a single document containing the authorization for final disposition, the signature of the declarant, and the signatures of the remote witnesses. 11. The name, state bar number, and business or residential address of the supervising attorney. 12. Any other information that the supervising attorney considers to be material with respect to the declarant's capacity to sign a valid authorization for final disposition, the declarant's and witnesses' compliance with this section, or any other information that the supervising attorney deems relevant to the execution of the authorization for final disposition. (L) The affidavit of compliance is attached to the authorization for final disposition. (m) An affidavit of compliance described in this subsection shall be substantially in the following form: AFFIDAVIT OF COMPLIANCE State of .... County of .... The undersigned, being first duly sworn under oath, states as follows: This Affidavit of Compliance is executed pursuant to Wis. Stat. § 154.30 (8m) to document the execution of the authorization for final disposition of [name of declarant] via remote appearance by 2-way, real-time audiovisual communication technology on [date]. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 25 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 5 ASSEMBLY BILL 985 1. The name and residential address of the declarant is .... 2. The name and [residential or business] address of remote witness 1 is .... 3. The name and [residential or business] address of remote witness 2 is .... 4. The address within the state of Wisconsin where the declarant was physically located at the time the declarant signed the authorization for final disposition is .... 5. The address within the state of Wisconsin where remote witness 1 was physically located at the time the remote witness witnessed the declarant's execution of the authorization for final disposition is .... 6. The address within the state of Wisconsin where remote witness 2 was physically located at the time the remote witness witnessed the declarant's execution of the authorization for final disposition is .... 7. The declarant and remote witnesses were all known to each other and to the supervising attorney. - OR - The declarant and remote witnesses were not all known to each other and to the supervising attorney. Each produced the following form of photo identification to confirm his or her identity: .... 8. The declarant declared that the declarant is 18 years of age or older, that the document is the declarant's authorization for final disposition, and that the document was executed as the declarant's voluntary act. 9. Each of the remote witnesses and the supervising attorney were able to see the declarant, or an individual 18 years of age or older at the express direction and in the physical presence of the declarant, sign. The declarant appeared to be 18 years of age or older and acting voluntarily. 10. The audiovisual technology used for the signing process was .... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 26 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 5 ASSEMBLY BILL 985 11. The authorization for final disposition was not signed in counterpart. The following methods were used to forward the authorization for final disposition to each remote witness for signing and to the supervising attorney after signing. - OR - The authorization for final disposition was signed in counterpart. The following methods were used to forward each counterpart to the supervising attorney. [If applicable] - The supervising attorney physically compiled the signed paper counterparts into a single document containing the authorization for final disposition, the signature of the declarant, and the signatures of the remote witnesses on [date] by [e.g., attaching page 7 from each counterpart signed by a remote witness to the back of the authorization for final disposition signed by the declarant]. 12. The name, state bar number, and [business or residential] address of the supervising attorney is .... 13. [Optional] Other information that the supervising attorney considers to be material is as follows: .... .... (signature of supervising attorney) Subscribed and sworn to before me on .... (date) by .... (name of supervising attorney). .... (signature of notarial officer) Stamp .... (Title of office) [My commission expires: ....] SECTION 6. 155.10 (3) of the statutes is created to read: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 - 27 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 6 ASSEMBLY BILL 985 155.10 (3) For purposes of sub. (1) (c), “in the presence of” includes the simultaneous remote appearance by 2-way, real-time audiovisual communication technology if all of the following conditions are satisfied: (a) The signing is supervised by an attorney in good standing licensed by this state. The supervising attorney may serve as one of the remote witnesses. (b) The principal attests to being physically located in this state during the 2-way, real-time audiovisual communication. (c) Each remote witness attests to being physically located in this state during the 2-way, real-time audiovisual communication. (d) The principal and each of the remote witnesses identify themselves. If the principal and remote witnesses are not personally known to each other and to the supervising attorney, the principal and each of the remote witnesses display photo identification. (e) The principal identifies anyone else present in the same physical location as the principal and, if possible, the principal makes a visual sweep of the principal's physical surroundings so that the supervising attorney and each remote witness can confirm the presence of any other person. (f) The principal displays the power of attorney for health care, confirms the total number of pages and the page number of the page on which the principal's signature will be affixed, and declares to the remote witnesses and the supervising attorney all of the following: 1. That the principal is 18 years of age or older. 2. That the document is the principal's power of attorney for health care. 3. That the document is being executed as a voluntary act. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 - 28 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 6 ASSEMBLY BILL 985 (g) The principal, or an individual 18 years of age or older at the express direction and in the physical presence of the principal, dates and signs the power of attorney for health care in a manner that allows each of the remote witnesses and the supervising attorney to see the execution. (h) The audiovisual communication technology used allows communication by which a person is able to see, hear, and communicate in an interactive way with another person in real time using electronic means, except that if the principal, a remote witness, or the supervising attorney has an impairment that affects hearing, sight, or speech, assistive technology or learned skills may be substituted for audio or visual if it allows that person to actively participate in the signing in real time. (i) The power of attorney for health care indicates that it is being executed pursuant to this subsection. (j) One of the following occurs: 1. The principal, or another person at the direction of the principal, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original power of attorney for health care to the supervising attorney within a reasonable time after execution. The supervising attorney then personally delivers or transmits by U.S. mail or commercial courier service the entire signed original power of attorney for health care to the remote witnesses within a reasonable time. The first remote witness to receive the original power of attorney for health care signs and dates the original power of attorney for health care as a witness and forwards the entire signed original power of attorney for health care by personal delivery or U.S. mail or commercial courier service within a reasonable time to the 2nd remote witness, who signs and dates it as a witness and forwards the entire signed original 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 - 29 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 6 ASSEMBLY BILL 985 power of attorney for health care by personal delivery or U.S. mail or commercial courier service within a reasonable time to the supervising attorney. 2. The principal, or another person at the direction of the principal, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original power of attorney for health care to the supervising attorney within a reasonable time after execution and transmits by facsimile or electronic means a legible copy of the entire signed power of attorney for health care directly to each remote witness within a reasonable time after execution. Each remote witness then signs the transmitted copy of the power of attorney for health care as a witness and personally delivers or transmits by U.S. mail or commercial courier service the entire signed copy of the power of attorney for health care to the supervising attorney within a reasonable time after witnessing. The signed original and signed copies together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving the signed original and signed copies, compiles the signed original and signed copies into one document by attaching the signature pages of each remote witness to the original signed by or on behalf of the principal, in which case the compiled document shall constitute the original. 3. The principal and each of the remote witnesses sign identical copies of the original. The principal, or another person at the direction of the principal, and each of the remote witnesses personally deliver or transmit by U.S. mail or commercial courier service the signed originals to the supervising attorney within a reasonable time after execution. All of the signed originals together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving all signed originals, compiles the originals into one document by attaching the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 - 30 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 6 ASSEMBLY BILL 985 signature pages of each remote witness to the original signed by or on behalf of the principal, in which case the compiled document shall constitute the original. (k) The supervising attorney completes an affidavit of compliance that contains the following information: 1. The name and residential address of the principal. 2. The name and residential or business address of each remote witness. 3. The address within this state where the principal was physically located at the time the principal signed the power of attorney for health care. 4. The address within this state where each remote witness was physically located at the time the remote witness witnessed the principal's execution of the power of attorney for health care. 5. A statement that the principal and remote witnesses were all known to each other and the supervising attorney or a description of the form of photo identification used to confirm the identity of the principal and each remote witness. 6. Confirmation that the principal declared that the principal is 18 years of age or older, that the document is the principal's power of attorney for health care, and that the document was being executed as the principal's voluntary act. 7. Confirmation that each of the remote witnesses and the supervising attorney were able to see the principal, or an individual 18 years of age or older at the express direction and in the physical presence of the principal, sign, and that the principal appeared to be 18 years of age or older and acting voluntarily. 8. A description of the audiovisual technology used for the signing process. 9. If the power of attorney for health care was not signed in counterpart, a description of the method used to forward the power of attorney for health care to each remote witness for signing and to the supervising attorney after signing. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 31 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 6 ASSEMBLY BILL 985 10. If the power of attorney for health care was signed in counterpart, a description of the method used to forward each counterpart to the supervising attorney and, if applicable, how and when the supervising attorney physically compiled the signed paper counterparts into a single document containing the power of attorney for health care, the signature of the principal, and the signatures of the remote witnesses. 11. The name, state bar number, and business or residential address of the supervising attorney. 12. Any other information that the supervising attorney considers to be material with respect to the principal's capacity to sign a valid power of attorney for health care, the principal's and witnesses' compliance with this section, or any other information that the supervising attorney deems relevant to the execution of the power of attorney for health care. (L) The affidavit of compliance is attached to the power of attorney for health care. (m) An affidavit of compliance described in this subsection shall be substantially in the following form: AFFIDAVIT OF COMPLIANCE State of .... County of .... The undersigned, being first duly sworn under oath, states as follows: This Affidavit of Compliance is executed pursuant to Wis. Stat. § 155.10 (3) to document the execution of the power of attorney for health care of [name of principal] via remote appearance by 2-way, real-time audiovisual communication technology on [date]. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 32 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 6 ASSEMBLY BILL 985 1. The name and residential address of the principal is .... 2. The name and [residential or business] address of remote witness 1 is .... 3. The name and [residential or business] address of remote witness 2 is .... 4. The address within the state of Wisconsin where the principal was physically located at the time the principal signed the power of attorney for health care is .... 5. The address within the state of Wisconsin where remote witness 1 was physically located at the time the remote witness witnessed the principal's execution of the power of attorney for health care is .... 6. The address within the state of Wisconsin where remote witness 2 was physically located at the time the remote witness witnessed the principal's execution of the power of attorney for health care is .... 7. The principal and remote witnesses were all known to each other and to the supervising attorney. - OR - The principal and remote witnesses were not all known to each other and to the supervising attorney. Each produced the following form of photo identification to confirm his or her identity: .... 8. The principal declared that the principal is 18 years of age or older, that the document is the principal's power of attorney for health care, and that the document was being executed as the principal's voluntary act. 9. Each of the remote witnesses and the supervising attorney were able to see the principal, or an individual 18 years of age or older at the express direction and in the physical presence of the principal, sign. The principal appeared to be 18 years of age or older and acting voluntarily. 10. The audiovisual technology used for the signing process was .... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 - 33 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 6 ASSEMBLY BILL 985 11. The power of attorney for health care was not signed in counterpart. The following methods were used to forward the power of attorney for health care to each remote witness for signing and to the supervising attorney after signing. - OR - The power of attorney for health care was signed in counterpart. The following methods were used to forward each counterpart to the supervising attorney. [If applicable] - The supervising attorney physically compiled the signed paper counterparts into a single document containing the power of attorney for health care, the signature of the principal, and the signatures of the remote witnesses on [date] by [e.g., attaching page 7 from each counterpart signed by a remote witness to the back of the power of attorney for health care signed by the principal]. 12. The name, state bar number, and business or residential address of the supervising attorney is .... 13. [Optional] Other information that the supervising attorney considers to be material is as follows: .... .... (signature of supervising attorney) Subscribed and sworn to before me on .... (date) by .... (name of supervising attorney). .... (signature of notarial officer) Stamp .... (Title of office) [My commission expires: ....] SECTION 7. 244.05 of the statutes is repealed and recreated to read: 244.05 Execution of power of attorney. (1) To execute a power of attorney, the principal must sign the power of attorney, or an individual 18 years of age or older 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 - 34 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 7 ASSEMBLY BILL 985 at the express direction and in the physical presence of the principal must sign the principal's name on the power of attorney. (2) A signature of the principal, or the signature of an individual signing on behalf of the principal, on a power of attorney is presumed to be genuine if the principal makes an acknowledgment of the power of attorney before a notarial officer authorized under ch. 140 to take acknowledgments. (3) A signature of the principal, or the signature of an individual signing on behalf of the principal, on a power of attorney is presumed to be genuine if the signing is witnessed by 2 witnesses via simultaneous remote appearance by 2-way, real-time audiovisual communication technology if all of the following conditions are satisfied: (a) The signing is supervised by an attorney in good standing licensed by this state. The supervising attorney may serve as one of the remote witnesses. (b) The principal attests to being physically located in this state during the 2-way, real-time audiovisual communication. (c) Each remote witness attests to being physically located in this state during the 2-way, real-time audiovisual communication. (d) The principal and each of the remote witnesses identify themselves. If the principal and remote witnesses are not personally known to each other and to the supervising attorney, the principal and each of the remote witnesses display photo identification. (e) The principal identifies anyone else present in the same physical location as the principal and, if possible, the principal makes a visual sweep of the principal's physical surroundings so that the supervising attorney and each remote witness can confirm the presence of any other person. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 35 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 7 ASSEMBLY BILL 985 (f) The principal displays the power of attorney, confirms the total number of pages and the page number of the page on which the principal's signature will be affixed, and declares to the remote witnesses and the supervising attorney all of the following: 1. That the principal is 18 years of age or older. 2. That the document is the principal's power of attorney. 3. That the document is being executed as a voluntary act. (g) The principal, or another individual 18 years of age or older at the express direction and in the physical presence of the principal, signs the power of attorney in a manner that allows each of the remote witnesses and the supervising attorney to see the execution. (h) The audiovisual communication technology used allows communication by which a person is able to see, hear, and communicate in an interactive way with another person in real time using electronic means, except that if the principal, a remote witness, or the supervising attorney has an impairment that affects hearing, sight, or speech, assistive technology or learned skills may be substituted for audio or visual if it allows that person to actively participate in the signing in real time. (i) The power of attorney indicates that it is being executed pursuant to this section. (j) One of the following occurs: 1. The principal, or another person at the direction of the principal, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original power of attorney to the supervising attorney within a reasonable time after execution. The supervising attorney then personally delivers or transmits by U.S. mail or commercial courier service the entire signed original power of attorney to the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 36 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 7 ASSEMBLY BILL 985 remote witnesses within a reasonable time. The first remote witness to receive the original power of attorney signs the original power of attorney as a witness and forwards the entire signed original power of attorney by personal delivery or U.S. mail or commercial courier service within a reasonable time to the 2nd remote witness, who signs it as a witness and forwards the entire signed original power of attorney by personal delivery or U.S. mail or commercial courier service within a reasonable time to the supervising attorney. 2. The principal, or another person at the direction of the principal, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original power of attorney to the supervising attorney within a reasonable time after execution and transmits by facsimile or electronic means a legible copy of the entire signed power of attorney directly to each remote witness within a reasonable time after execution. Each remote witness then signs the transmitted copy of the power of attorney as a witness and personally delivers or transmits by U.S. mail or commercial courier service the entire signed copy of the power of attorney to the supervising attorney within a reasonable time after witnessing. The signed original and signed copies together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving the signed original and signed copies, compiles the signed original and signed copies into one document by attaching the signature pages of each remote witness to the original signed by or on behalf of the principal, in which case the compiled document shall constitute the original. 3. The principal and each of the remote witnesses sign identical copies of the original. The principal, or another person at the direction of the principal, and each of the remote witnesses personally deliver or transmit by U.S. mail or commercial 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 37 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 7 ASSEMBLY BILL 985 courier service the signed originals to the supervising attorney within a reasonable time after execution. All of the signed originals together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving all signed originals, compiles the originals into one document by attaching the signature pages of each remote witness to the original signed by or on behalf of the principal, in which case the compiled document shall constitute the original. (k) The supervising attorney completes an affidavit of compliance that contains all of the following information: 1. The name and residential address of the principal. 2. The name and residential or business address of each remote witness. 3. The address within this state where the principal was physically located at the time the principal signed the power of attorney. 4. The address within this state where each remote witness was physically located at the time the remote witness witnessed the principal's execution of the power of attorney. 5. A statement that the principal and remote witnesses were all known to each other and the supervising attorney or a description of the form of photo identification used to confirm the identity of the principal and each remote witness. 6. Confirmation that the principal declared that the principal is 18 years of age or older, that the document is the principal's power of attorney, and that the document was being executed as the principal's voluntary act. 7. Confirmation that each of the remote witnesses and the supervising attorney were able to see the principal, or another individual 18 years of age or older at the express direction and in the physical presence of the principal, sign, and that the principal appeared to be 18 years of age or older and acting voluntarily. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 38 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 7 ASSEMBLY BILL 985 8. A description of the audiovisual technology used for the signing process. 9. If the power of attorney was not signed in counterpart, a description of the method used to forward the power of attorney to each remote witness for signing and to the supervising attorney after signing. 10. If the power of attorney was signed in counterpart, a description of the method used to forward each counterpart to the supervising attorney and, if applicable, how and when the supervising attorney physically compiled the signed paper counterparts into a single document containing the power of attorney, the signature of the principal, and the signatures of the remote witnesses. 11. The name, state bar number, and business or residential address of the supervising attorney. 12. Any other information that the supervising attorney considers to be material with respect to the principal's capacity to sign a valid power of attorney, the principal's and witnesses' compliance with this section, or any other information that the supervising attorney deems relevant to the execution of the power of attorney. (L) The affidavit of compliance is attached to the power of attorney. (m) An affidavit of compliance described in this subsection shall be substantially in the following form: AFFIDAVIT OF COMPLIANCE State of .... County of .... The undersigned, being first duly sworn under oath, states as follows: This Affidavit of Compliance is executed pursuant to Wis. Stat. § 244.05 to document the execution of the power of attorney of [name of principal] via remote appearance by 2-way, real-time audiovisual communication technology on [date]. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 39 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 7 ASSEMBLY BILL 985 1. The name and residential address of the principal is .... 2. The name and [residential or business] address of remote witness 1 is .... 3. The name and [residential or business] address of remote witness 2 is .... 4. The address within the state of Wisconsin where the principal was physically located at the time the principal signed the power of attorney is .... 5. The address within the state of Wisconsin where remote witness 1 was physically located at the time the remote witness witnessed the principal's execution of the power of attorney is .... 6. The address within the state of Wisconsin where remote witness 2 was physically located at the time the remote witness witnessed the principal's execution of the power of attorney is .... 7. The principal and remote witnesses were all known to each other and to the supervising attorney. - OR - The principal and remote witnesses were not all known to each other and to the supervising attorney. Each produced the following form of photo identification to confirm his or her identity: .... 8. The principal declared that the principal is 18 years of age or older, that the document is the principal's power of attorney, and that the document was being executed as the principal's voluntary act. 9. Each of the remote witnesses and the supervising attorney were able to see the principal, or another individual 18 years of age or older at the express direction and in the physical presence of the principal, sign. The principal appeared to be 18 years of age or older and acting voluntarily. 10. The audiovisual technology used for the signing process was .... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 - 40 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 7 ASSEMBLY BILL 985 11. The power of attorney was not signed in counterpart. The following methods were used to forward the power of attorney to each remote witness for signing and to the supervising attorney after signing. - OR - The power of attorney was signed in counterpart. The following methods were used to forward each counterpart to the supervising attorney. [If applicable] - The supervising attorney physically compiled the signed paper counterparts into a single document containing the power of attorney, the signature of the principal, and the signatures of the remote witnesses on [date] by [e.g., attaching page 7 from each counterpart signed by a remote witness to the back of the power of attorney signed by the principal]. 12. The name, state bar number, and business or residential address of the supervising attorney is .... 13. [Optional] Other information that the supervising attorney considers to be material is as follows: .... .... (signature of supervising attorney) Subscribed and sworn to before me on .... (date) by .... (name of supervising attorney). .... (signature of notarial officer) Stamp .... (Title of office) [My commission expires: ....] SECTION 8. 853.03 (2) (c) of the statutes is created to read: 853.03 (2) (c) For purposes this subsection, “conscious presence” includes the simultaneous remote appearance by 2-way, real-time audiovisual communication technology if all of the following conditions are satisfied: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 - 41 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 8 ASSEMBLY BILL 985 1. The signing is supervised by an attorney in good standing licensed by this state. The supervising attorney may serve as one of the remote witnesses. 2. The testator attests to being physically located in this state during the 2-way, real-time audiovisual communication. 3. Each remote witness attests to being physically located in this state during the 2-way, real-time audiovisual communication. 4. The testator and each of the remote witnesses identify themselves. If the testator and remote witnesses are not personally known to each other and to the supervising attorney, the testator and each of the remote witnesses display photo identification. 5. The testator identifies anyone else present in the same physical location as the testator and, if possible, the testator makes a visual sweep of the testator's physical surroundings so that the supervising attorney and each remote witness can confirm the presence of any other person. 6. The testator displays the will, confirms the total number of pages and the page number of the page on which the testator's signature will be affixed, and declares to the remote witnesses and the supervising attorney all of the following: a. That the testator is 18 years of age or older. b. That the document is the testator's will. c. That the document is being executed as a free and voluntary act. 7. The testator, the testator with the assistance of another person 18 years of age or older with the testator's consent, or another person 18 years of age or older signing in the testator's name at the testator's direction and in the testator's physical presence, executes the will in a manner that allows each of the remote witnesses and the supervising attorney to see the execution. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 42 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 8 ASSEMBLY BILL 985 8. The audiovisual communication technology used allows communication by which a person is able to see, hear, and communicate in an interactive way with another person in real time using electronic means, except that if the testator, a remote witness, or the supervising attorney has an impairment that affects hearing, sight, or speech, assistive technology or learned skills may be substituted for audio or visual if it allows that person to actively participate in the signing in real time. 9. The will indicates that it is being executed pursuant to this section. 10. One of the following occurs: a. The testator, or another person at the direction of the testator, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original will to the supervising attorney within a reasonable time after execution. The supervising attorney then personally delivers or transmits by U.S. mail or commercial courier service the entire signed original will to the remote witnesses within a reasonable time. The first remote witness to receive the original will signs the original will as a witness and forwards the entire signed original will by personal delivery or U.S. mail or commercial courier service within a reasonable time to the 2nd remote witness, who signs it as a witness and forwards the entire signed original will by personal delivery or U.S. mail or commercial courier service within a reasonable time to the supervising attorney. b. The testator, or another person at the direction of the testator, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original will to the supervising attorney within a reasonable time after execution and transmits by facsimile or electronic means a legible copy of the entire signed original will directly to each remote witness within a reasonable time after execution. Each remote witness then signs the transmitted copy of the will as a witness and transmits 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 43 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 8 ASSEMBLY BILL 985 the entire signed copy of the will by personal delivery or U.S. mail or commercial courier service to the supervising attorney within a reasonable time after witnessing. The signed original and signed copies together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving the signed original and signed copies, compiles the signed original and signed copies into one document by attaching the signature pages of each remote witness to the original signed by or on behalf of the testator, in which case the compiled document shall constitute the original. c. The testator and each of the remote witnesses sign identical copies of the original. The testator, or another person at the direction of the testator, and each of the remote witnesses personally deliver or transmit by U.S. mail or commercial courier service the signed originals to the supervising attorney within a reasonable time after execution. All of the signed originals together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving all signed originals, compiles the originals into one document by attaching the signature pages of each remote witness to the original signed by or on behalf of the testator, in which case the compiled document shall constitute the original. 11. The supervising attorney completes an affidavit of compliance that contains the following information: a. The name and residential address of the testator. b. The name and residential or business address of each remote witness. c. The address within this state where the testator was physically located at the time the testator signed the will. d. The address within this state where each remote witness was physically located at the time the remote witness witnessed the testator's execution of the will. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 44 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 8 ASSEMBLY BILL 985 e. A statement that the testator and remote witnesses were all known to each other and the supervising attorney or a description of the form of photo identification used to confirm the identity of the testator and each remote witness. f. Confirmation that the testator declared that the testator is 18 years of age or older, that the document is the testator's will, and that the document was being executed as the testator's free and voluntary act. g. Confirmation that each of the remote witnesses and the supervising attorney were able to see the testator, the testator with the assistance of another person 18 years of age or older with the testator's consent, or another person 18 years of age or older signing in the testator's name at the testator's direction and in the testator's physical presence, sign, and that the testator appeared to be 18 years of age or older and acting freely and voluntarily. h. A description of the audiovisual technology used for the signing process. i. If the will was not signed in counterpart, a description of the method used to forward the will to each remote witness for signing and to the supervising attorney after signing. j. If the will was signed in counterpart, a description of the method used to forward each counterpart to the supervising attorney and, if applicable, how and when the supervising attorney physically compiled the signed paper counterparts into a single document containing the will, the signature of the testator, and the signatures of the remote witnesses. k. The name, state bar number, and business or residential address of the supervising attorney. L. Any other information that the supervising attorney considers to be material with respect to the testator's capacity to sign a valid will, the testator's and witnesses' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 45 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 8 ASSEMBLY BILL 985 compliance with this section, or any other information that the supervising attorney deems relevant to the execution of the will. 12. The affidavit of compliance is attached to the will. 13. An affidavit of compliance executed in compliance with this section shall constitute a self-proving affidavit executed in compliance with s. 853.04 (2). 14. An affidavit of compliance described in this paragraph shall be substantially in the following form: AFFIDAVIT OF COMPLIANCE State of .... County of .... The undersigned, being first duly sworn under oath, states as follows: This Affidavit of Compliance is executed pursuant to Wis. Stat. § 853.03 (2) (c) to document the execution of the will of [name of testator] via remote appearance by 2-way, real-time audiovisual communication technology on [date]. 1. The name and residential address of the testator is .... 2. The name and [residential or business] address of remote witness 1 is .... 3. The name and [residential or business] address of remote witness 2 is .... 4. The address within the state of Wisconsin where the testator was physically located at the time the testator signed the will is .... 5. The address within the state of Wisconsin where remote witness 1 was physically located at the time the remote witness witnessed the testator's execution of the will is .... 6. The address within the state of Wisconsin where remote witness 2 was physically located at the time the remote witness witnessed the testator's execution of the will is .... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 46 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 8 ASSEMBLY BILL 985 7. The testator and remote witnesses were all known to each other and to the supervising attorney. - OR - The testator and remote witnesses were not all known to each other and to the supervising attorney. Each produced the following form of photo identification to confirm his or her identity: .... 8. The testator declared that the testator is 18 years of age or older, that the document is the testator's will, and that the document was being executed as the testator's free and voluntary act. 9. Each of the remote witnesses and the supervising attorney were able to see the testator, the testator with the assistance of another person 18 years of age or older with the testator's consent, or another person 18 years of age or older signing in the testator's name at the testator's direction and in the testator's physical presence, sign. The testator appeared to be 18 years of age or older and acting freely and voluntarily. 10. The audiovisual technology used for the signing process was .... 11. The will was not signed in counterpart. The following methods were used to forward the will to each remote witness for signing and to the supervising attorney after signing. - OR - The will was signed in counterpart. The following methods were used to forward each counterpart to the supervising attorney. [If applicable] - The supervising attorney physically compiled the signed paper counterparts into a single document containing the will, the signature of the testator, and the signatures of the remote witnesses on [date] by [e.g., attaching page 7 from each counterpart signed by a remote witness to the back of the will signed by the testator]. 12. The name, state bar number, and [business or residential] address of the supervising attorney is .... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 47 -2023 - 2024 Legislature LRB-5238/1 KMS:amn SECTION 8 ASSEMBLY BILL 985 13. [Optional] Other information that the supervising attorney considers to be material is as follows: .... .... (signature of supervising attorney) Subscribed and sworn to before me on .... (date) by .... (name of supervising attorney). .... (signature of notarial officer) Stamp .... (Title of office) [My commission expires: ....] (END) 1 2 3 4 5 6 7 8 9 10