What Is A Healthcare Power Of Attorney?

A health care power of attorney is a document in which you (the principal) designate someone else (the agent) to make health care decisions on your behalf if you ever become incapacitated. Done correctly, a health care power of attorney can avoid significant time, cost, and stress that comes with having a guardian appointed for you in the event you become incapacitated and cannot make your own health care decisions.

In order to create valid, a health care power of attorney in Wisconsin, you must meet the following requirements:

  1. The health care power of attorney must be a written document.
  2. You must be at least 18 years old.
  3. You must be of sound mind. If you have been adjudicated incompetent, or have a guardian appointed for you, you likely are not of sound mind for purposes of creating a health care power of attorney.
  4. You must sign and date the document. If you are unable to sign and date the document, someone who is at least 18 years old can sign and date for you as long as they do so in your presence and at your direction.
  5. When you sign and date the document, you must do so in the presence of two witnesses.
  6. You must sign the document voluntarily.

Who can witness a health care power of attorney?

In Wisconsin, you can choose any willing adult to act as a witness for your health care power of attorney provided they meet the following requirements:

  1. Both witnesses must  be at least 18 years old and of sound mind.
  2. Neither witness can be the person you have named as your agent in your health care power of attorney.
  3. Neither witness can be related to you by blood, marriage, or adoption.
  4. Neither witness can be your legal domestic partner.
  5. Neither witness can have knowledge that they have a claim on any portion of your estate.
  6. Neither witness can be directly financially responsible for your health care.
  7. Neither witness can  be one of your current health care providers.
  8. Neither witness can  be an employee, other than a chaplain or a social worker, of any of your health care providers.
  9. Neither witness can be an employee, other than a chaplain or a social worker, of an inpatient health care facility in which you are a patient.

Who can be an agent under a health care power of attorney?

Very often, your agent is a closed friend or family member who you trust to make health care decisions for you. Wisconsin allows you to choose any willing adult to act as your agent under your health care power of attorney as long as they meet the following requirements:

  1. Your agent cannot be one of your health care providers or the spouse of one of your health care provider, unless he or she is related to you.
  2. Your agent cannot be an employee of one of your health care providers or the spouse of an employee of one of your health care providers unless he or she is related to you.
  3. Your agent cannot be an employee of a health care facility in which you are a patient or reside unless he or she is related to you.

It is best to choose an agent whom you trust, and who you can rely on to make medical decisions in your best interest. 

You can also designate someone as your alternate health care agent to make health care decisions for you in the event your primary agent is unwilling or unable to serve.

When can my agent start making health care decisions for me?

Unless it says otherwise, your health care power of attorney must be activated before your agent can start making health care decisions for you. A health care power of attorney is activated when two physicians or one physician and one licensed advanced practice clinician personally examine you and sign a statement specifying that you are incapacitated. A copy of the statement must be attached to your health care power of attorney before your agent can start making health care decisions for you.

Being incapacitated means you are unable to receive and evaluate information effectively or communicate decisions to such an extent that you lack the capacity to manage your own health care decisions.  Mere old age, eccentricity or physical disability, either singly or together, are insufficient to make a finding of incapacity.  There must be something more.

Neither of the individuals who make a finding of incapacity may be a relative of yours or have knowledge that he or she is entitled to or has a claim on any portion of your estate.

Until your health care power of attorney is activated, the health care decisions you make for yourself take precedence over decisions made by your health care agent or anyone else.

As I wrote in a previous post, in Wisconsin, a healthcare power of attorney is a powerfully efficient and cost effective way to make sure a close friend or loved one will be able to make health care decisions for you if you are ever incapacitated.

James F. Guckenberg is an attorney with Halling & Cayo S.C. in Milwaukee, Wisconsin. He focuses his practice on estate planning, probate, and guardianships. Posts here are his own, do not offer legal advice or create an attorney-client relationship, and do not necessarily reflect the views of Halling & Cayo S.C.

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