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Wisconsin Health Care Directives

April 15, 2005

The heated debate surrounding the Terry Schiavo case emphasizes the importance of "advance medical directives." The Wisconsin Legislature has adopted two statutory forms that permit an individual to make his or her wishes known in advance with respect to certain health care decisions and to appoint another to make health care decisions on his or her behalf.

Although the Wisconsin statutory form Power of Attorney for Health Care and Declaration to Physicians may be effective in other states, each state usually has its own authorized form and may have its own specific requirements and limitations regarding advance health care directives. For individuals with multiple residences, we typically recommend that advance health care directives that comply with requirements of each relevant jurisdiction be executed.

Under Wisconsin’s Power of Attorney for Health Care, an individual (the "principal") may appoint another person as "health care agent" to make certain health care decisions on the principal’s behalf if two physicians (or one physician and a licensed psychologist) have examined the principal and have determined that he or she is unable to make such decisions. One or more alternate health care agents may be appointed to act in the event the initial health care agent is unable to act; however, the individual may not appoint co-health care agents to act concurrently. The Wisconsin statutory form permits the principal to either suspend or authorize to remain in effect the health care agent’s power to make health care decisions on her behalf during the principal’s pregnancy.

The form specifically authorizes a health care agent to admit the principal to a nursing home or a community-based residential facility for brief periods of time for rest or recuperation, and permits the principal to authorize (or decline to authorize) the health care agent to admit the principal to a nursing home and/or a community-based residential facility for reasons other than rest or recuperation. It is important to recognize that merely granting such authority to a health care agent does not indicate a desire to be admitted to a nursing home and/or a community-based residential facility. If such authority is not granted and if the circumstances dictate that admission is necessary, the health care agent may otherwise be required to initiate court proceedings to admit the principal to a nursing home and/or community-based residential facility or a guardian may have to be appointed to do so.

The Power of Attorney for Health Care form also permits the principal to authorize the health care agent to consent to the withdrawal or withholding of feeding tubes provided his or her physician determines that such action will not cause pain or reduce comfort. The form also permits the principal to state any specific desires, provisions or limitations with respect to his or her health care. We typically recommend to our clients that they not incorporate any such specific desires, provisions or limitations in their Power of Attorney for Health Care, but instead discuss their health care wishes with the health care agent. Such statements may be subject to differing interpretations by the health care provider and may result in confusion or unnecessary delay. Finally, at the end of the form, the principal has an opportunity to express his or her wishes regarding organ donation.

Under Wisconsin’s "Declaration to Physicians" (commonly known as a "Living Will"), an individual may state his or her wishes regarding certain end of life decisions. The individual may indicate whether he or she wishes to have life prolonged by artificial means if two physicians determine that he or she has a terminal illness or an incurable injury or illness which has left the individual in a persistent vegetative state. The Declaration to Physicians serves as a statement of intention regarding life-sustaining procedures regardless of the availability of a health care agent to make those decisions. If the individual is known to be pregnant, the Declaration to Physicians has no effect during pregnancy.

Please contact any member of Godfrey & Kahn, S.C.’s Estate Planning team if you have any questions or would like our assistance in establishing a health care directive.

Media Contact 

If you have a media request or need an attorney with particular knowledge for comment, please contact Susan Steberl, Director of Marketing, at 414.287.9556 or ssteberl@gklaw.com.

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