Blog

What Happens If Your Health Care Agent Goes Rogue?

If you have created a health care power of attorney, give yourself a pat on the back! You have taken an important step in the estate planning process. At some point, when you finish basking in the glory of your accomplishment, you may begin to wonder what would happen if the person you thoughtfully selected to be your health care agent is either no longer willing or able to fulfill their duties or worse, acts in a manner that is inconsistent with your best interests. In other words, what if your health care agent goes rogue?

First, let’s clarify some important terminology. In Wisconsin, the person who creates a health care power of attorney for themself is called the principal. The person the principal names in the power of attorney document to make health care decisions form them is called the agent.

Next, it is important to understand that your health care agent cannot be charged with a crime or held civilly liable for decisions they make your behalf in good faith, so long as the decision is consistent with your health care power of attorney document and it complies with applicable laws. This applies even if you or others don’t agree with the decision or the decision has negative results. Healthcare agents, like the rest of us, are allowed to make mistakes as long as they are acting in good faith when the make them.

So, what if your health care agent is failing to act in good faith, or is simply no longer willing or able to continue acting as your agent?

Revocation. If your health care agent goes rogue, you can revoke your power of attorney and create a new one with a new agent. You can revoke your healthcare power of attorney by doing any of the following things:

1. Canceling, defacing, obliterating, burning, tearing or otherwise destroying the power of attorney for health care document or directing someone else in your presence to do so.

2. Signing and dating a written statement expressing your intent to revoke the health care power of attorney.

3. Verbally expressing your intent to revoke the health care power of attorney in the presence of two witnesses.

4. Executing a subsequent health care power of attorney.

If your health care agent is also your spouse and your marriage ends through annulment or divorce, your health care power of attorney is automatically revoked.  The same is true if your agent is your legal domestic partner and the domestic partnership is terminated.

Further, once your agent knows that your health care power of attorney has been revoked, they are required communicate that fact to your health care providers, but only the ones they are aware of having a copy of the power of attorney document.  Upon receiving such notification, your health care provider is required to note your medical record with the time, date and place of the revocation. If they received notice of the revocation sometime after the the actual date of revocation, they are required to also note your medical record with the time, date and place they were notified.

Resignation. Agents appointed under health care powers of attorney are not legally bound to serve. They can resign at any time for any reason. If your agent resigns, your alternate agent, if you identified one in your power of attorney document, takes over and becomes your primary agent. If you did not appoint an alternate agent, you may need to create a new power of attorney with new agents, or someone may need to petition the court to have a guardian appointed for you, depending on the circumstances.

Court Supervision. If a court finds that your health care agent has not been performing in accordance with the terms of your health care power of attorney document, the court may do any of the following:

1. Direct your health care agent to act in accordance with the terms of your health care power of attorney.

2. Require your health care agent to report to the court concerning performance of his or her duties at specified periods of time.

3. Rescind your health care agent’s authority and revoke the power of attorney.  If you have named an alternate health care agent in your health care power of attorney, your alternate agent may take over as your primary agent. Again, if you have not named an alternate agent you may need to create a new health care power of attorney, or you may have to go through a guardianship proceeding depending on the circumstances.

Penalties. In addition, there are several penalties that can be imposed on an individual who violates certain rules governing health care powers of attorney. Note that these penalties include anyone who violates these rules, not just your health care agent.

(1) Whoever directly or indirectly coerces, threatens or intimidates an individual so as to cause the individual to execute a power of attorney for health care instrument shall be fined not more than $500 or imprisoned for not more than 30 days or both.

(2) Whoever intentionally conceals, cancels, defaces, obliterates, damages or destroys a power of attorney for health care instrument without the consent of the principal for that instrument may be fined not more than $500 or imprisoned for not more than 30 days or both.

(3 )Whoever knowingly conceals, falsifies or forges a power of attorney for health care instrument with intent to create the false impression that a person other than the health care agent has been so designated shall be fined not more than $1,000 or imprisoned for not more than 9 months or both.

(4 )Whoever intentionally withholds actual knowledge of the revocation of a power of attorney for health care or of the falsification or forgery of a power of attorney for health care instrument shall be fined not more than $1,000 or imprisoned for not more than 9 months or both.

(5) Whoever acts or attempts to act as a health care agent based on a power of attorney for health care that the individual knows has been executed without the voluntary consent of the principal, that the individual knows has been forged or substantially altered without the authorization of the principal, or that the individual knows has been revoked, shall be fined not more than $1,000 or imprisoned for not more than 9 months or both.

Guardianship. As indicated above, sometimes, it is necessary to commence a guardianship proceeding when a health care agent goes rogue. Even if a guardian is appointed, the court may still keep all or portions of your health care power of attorney in place while limiting or removing your health care agent’s authority. If the health care power of attorney is not revoked or limited by the court, the guardian appointed for you cannot make health care decisions for you that your health care agent could make unless the guardian serves a dual role and is also your health care agent.

Final Thought. Undoubtedly, when you set up your health care power of attorney, you chose an agent who you trusted to act in good faith and who you believed would be there for you during difficult times when you need them the most. Unfortunately, nothing in life or estate planning can be one-hundred percent absolutely certain, although we estate planning attorneys sometimes like to think we can come close. The good news is that there are options and protections available to help get things back on track so you receive the support you need in the event your health care agent goes rogue.

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.

Duties, Powers, and Limits for Health Care Agents

Many health care agents do not fully understand their role until they are called upon to act and then find themselves scrambling to understand their powers, duties, and limitations. If you have recently been named as an agent in your friend or relative’s health care power of attorney, you may be asking yourself what exactly you have gotten yourself into. Good question!

Before we answer that question, a quick reminder about terminology. Remember, in Wisconsin, the person who creates a health care power of attorney for themself is called the principal. The person the principal names in the power of attorney document to make health care decisions is called the agent.

Now that we know who is who, let’s dive into exploring the duties, powers, and limitations you may have as someone’s health care agent.

Activation. First and foremost, it is important to understand that, in Wisconsin, an agent under a health care power of attorney generally has no authority until the power of attorney has been activated. Activating a health care power of attorney means two physicians, or one physician and one licensed advanced practice clinician, personally examine the principal and sign a statement specifying that the principal is incapacitated. A copy of the statement is then attached to the health care power of attorney document and it becomes activated. Once the healthcare power of attorney is activated, health care professionals will look to you as the agent to make health care decisions for the principal.

General Authority.  As a health care agent, you are generally authorized to make informed decisions to accept, maintain, discontinue or refuse any care, treatment, service or procedure, or to maintain, diagnose or treat physical or mental conditions for the principal. However, there are limitations to your authority.

Prohibited by Law. You cannot elect to take any course of action for the principal that would otherwise be prohibited by law. For example, since physician assisted suicide is not allowed in Wisconsin at this time, you cannot authorize that course of action.

Prohibited by the Power of Attorney Document. If the power of attorney document specifically states that the agent cannot make certain decisions for the principal, such as removing a feeding tube, then you are bound by those limitations.

Good Faith. As an agent, you are required to act in good faith consistent with the principal’s desires as expressed in the health care power of attorney document, or as specifically directed by the principal.

Communication.  Health care agents have a duty to fully inform the principal about any health care decision they make and must allow the principal to participate in the decision making process to the extent the principal is able.  This could even involve asking the principal to blink their eyes once for “yes” and twice for “no” if that is the only way the principal can communicate.

Life Sustaining Procedures.  As a health care agent, you must also act in good faith consistent with any valid written declaration for withholding life-sustaining procedures and withdrawing feeding tubes executed by the principal. However, it is important to understand that the provisions of the health care power of attorney supersede any directly conflicting provisions in such a declaration

In the absence of a valid written declaration, you may consent to the withholding or withdrawal of a feeding tube for the principal only if the power of attorney for health care document so authorizes, and provided the attending health care professional does not advise that withholding or withdrawing a feeding tube will cause principal pain or reduce their comfort. 

You cannot withhold or withdraw nutrition or hydration that the principal is able to take orally unless circumstances are such that oral nutrition or hydration should not be provided, as determined by the principal’s attending health care professional. For example, if the attending physician tells the agent the principal should not eat for eight hours prior to having a particular medical procedure, the agent can withhold orally ingested food from the principal only for that period of time.

Mental Illness.  A health care agent cannot admit the principal on an inpatient basis to an institution for mental diseases, an intermediate care facility for persons with an intellectual disability, or other similar facilities for the treatment of mental illness. The agent also may not consent to experimental mental health research, psychosurgery, electroconvulsive treatment or drastic mental health treatment procedures for the principal.

Nursing Home Care.  You may admit the principal to a nursing home for recuperative care for a period not to exceed three months but only if the principal is admitted directly from a hospital inpatient unit for reasons other than psychiatric care.

If the principal lives with you, you may admit the principal to a nursing home or a community-based residential facility for up to thirty days, in order to provide you with a vacation or if you have a family emergency.

Notwithstanding these limitations, you may admit the principal to a nursing home or community-based residential facility for longer stays if the power of attorney document authorizes it and the principal is not diagnosed as developmentally disabled or as having a mental illness at the time of the proposed admission.

Pregnancy.  If you are aware that the principal is pregnant, you may make a health care decisions for the principal only if the health care power of attorney authorizes you to do so.

Signing Documents. As a health care agent, you are authorized to sign or otherwise execute any documents, waivers, or releases related to the principal’s care or treatment if it is necessary to implement the health care decisions that you are authorized to make under the health care power of attorney document.

Anatomical Gifts.  If the principal dies, you may make an anatomical gift of all or a part of the principal’s body unless restricted by the health care power of attorney document.

Death, Resignation, or Incapacity of the Health Care Agent. When creating a health care power of attorney, it is advisable to name a second agent who can serve as a backup in the event the primary agent dies, resigns, or becomes incapacitated.  If the backup agent dies, resigns, or becomes incapacitated, the principal will likely need to complete a new health care power of attorney naming a new agent to make health care decisions for them.

However, if the health care power of attorney is activated, and there is no backup agent, or the backup agent dies, resigns, or becomes incapacitated, it might be necessary to start a court action to have a successor agent or a guardian appointed.  This would be unfortunate as one of the primary reasons for creating a health care power of attorney is to avoid the need to go to court in the first place.  

Final Thoughts. Being a health care agent is an honor that comes with duties that are important and that can be difficult to fulfill. By just asking what you may have gotten yourself into, you have taken the first step toward being prepared to fulfill those duties if and when the time comes. As a next step, it is usually a good idea to request a copy of the health care power of attorney document from the principal and then thoroughly review it so you understand what authority you have and do not have. If the principal does not reach out to you first, it is also helpful to have a frank conversation with the principal about their health care wishes so you can act according to those desires to the extent you are able.

For more information, take a look at my prior and future posts in this series about health care powers of attorney in Wisconsin. Good luck!

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.

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.

Signing Estate Planning Documents in the Era of Social Distancing

Many estate planning documents in Wisconsin are traditionally signed in the physical presence of a notary and witnesses. Social distancing and the COVID-19 pandemic have made signing estate planning documents in the physical presence of others challenging on the best days and impossible on many days.

Recent changes in Wisconsin law have allowed for some documents to be notarized remotely by utilizing specific remote notarization services. Unfortunately, the new law excludes most estate planning documents from remote notarization, and there is no clear legal guidance on whether remote witnessing is allowed.

The good news is that many common estate planning documents in Wisconsin do not require notarization or, in some cases, witnesses for them to be legally valid.

Wills – A last will and testament in Wisconsin must be signed in the conscious presence of two disinterested witnesses in order to be valid. Notarizing a will with a self-proving affidavit can help establish the validity of the will in probate court, but notarization is not required for a will made in Wisconsin to be valid.

Trusts – Revocable and irrevocable trusts in Wisconsin need only be signed by the person or persons creating the trust. There is no requirement that trusts be notarized or witnessed in Wisconsin.

Financial Powers of Attorney – There is no requirement in Wisconsin that a financial power of attorney (also known as a general durable power of attorney) be witnessed or notarized. A financial power of attorney that is notarized carries greater assurances of validity, but the notarization is not required for the document to be valid.

Health Care Powers of Attorney – Health care powers of attorney in Wisconsin must be signed by the principal in the presence of two qualified witnesses but do not have to be notarized.

Living Wills – Like health care powers of attorney, a living will in Wisconsin must be signed signed by the principal in the presence of two qualified witnesses but it does not have to be notarized.

HIPAA Powers of Attorney – Powers of attorney under the Health Insurance Portability and Accountability Act need not be witnessed or notarized.

Marital Property-Will Substitute Agreements – Marital property agreements that provide for disposing of property upon the death of one or both spouses without probate do not have to be notarized or witnessed.

So what is all the fuss about notarizing and witnessing estate planning documents?

Signing estate planning documents in front of a notary and witnesses helps to ensure the documents will be accepted and honored by courts, health care providers, and financial institutions. When presented with estate planning documents, these players must often assess whether the party that signed the document could be the victim of abuse or exploitation. Witnessing and notarization can help them resolve that question. Here are some reasons why:

Authenticity – Witnessing and notarizing estate planning documents helps establish that the person who signed the document is who they say they are, and not someone who forged the signature of the person whose name appears on the document.

Voluntariness – It also helps establish that the person who signed the document signed voluntarily, and was not coerced or unduly influenced to sign the document against his or her will.

Capacity – Signing estate planning documents before a notary and witnesses helps establish that the person who signed the document had the capacity to understand what they were signing at the time they signed it.

What about remote witnesses?

Wisconsin law is unclear about whether a person who witnesses an estate planning document has to be physically present with the person signing the document. Some authorities indicate that the witness need only be within the rage of any of the senses of the person signing the document. For example, being able to see the person signing the document via video conference might be sufficient. Other authorities indicate that witnesses, like notaries, must indeed be in the physical presence of the person signing the document at the time it is signed. Until the law in Wisconsin becomes more clear, utilizing remote witnessing for estate planning documents carries some risk.

What are the alternatives to remote notarization and witnessing?

Make the most of estate planning tools that do not require notarization or witnesses like trusts, financial powers of attorney, HIPAA powers of attorney, and marital property agreements.

Update the beneficiary designations and transfer on death designations for your life insurance, 401k, IRA, checking, savings, and other accounts at financial institutions. These designations are some of the most important and overlooked elements of an estate plan, particularly when it comes to avoiding probate. They usually do not require notarization or witnesses, and they can often be completed online from home.

When notarization and witnesses are required, utilize social distancing methods as much as possible. This could include using masks and gloves, witnessing through glass barriers, separating or “quarantining” documents for an appropriate length of time, and other methods that can be devised for adhering to federal, state, and local social distance guidelines.

If you sign your estate planning documents while social distancing is in effect, you might consider resigning the documents when you are able to safely do so in the physical presence of a notary and witnesses, depending the documents you utilized and the methods you used for signing the documents.

Should I just wait until the pandemic passes to make or update my estate plan?

When to engage in estate planning is something only you can decide. Certainly, it makes good logical sense to do everything you can to get your affairs in order while in the midst of a global public health crisis. Doing as much as can safely be done to move an estate plan along now might be the best option for some people to protect their family as much as possible. Perhaps you cannot accomplish everything you want to accomplish with your estate plan immediately, but you may be able to meet many of your estate planning goals now while maintaining social distancing. You can then come back and finish the plan as social distancing guidelines ease and allow for more person to person contact.

Fear not, brighter days are ahead.

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.

The Power Of A Healthcare Power Of Attorney

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.

Wisconsin is not a next of kin state.

People are often surprised to learn that spouses and other immediate family members in Wisconsin do not automatically have the right to make health care decisions for each other.  For example, Wisconsin law does not automatically allow you to step in if your loved one is severely injured and is unable to understand or communicate information about his or her healthcare.

Instead, Wisconsin relies on a general rule of self-determination.  Under this rule, both competent and incompetent individuals retain the right to make decisions about their medical treatment, even end of life treatment.  The rule emanates in part  from  common law, in part from the Wisconsin state constitution, and in part from the U.S. constitution.  

As far back as 1891, the United States Supreme Court stated, “[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”

However, as the Wisconsin Supreme Court has pointed out,  “often such rights are only meaningful as they are exercised by agents acting with the best interests of their principals in mind.”  Thus, right of self-determination may not mean much to your injured loved one if he or she simply does not understand the nature of his or her injuries or cannot communicate.

So what can be done to help a loved on who is incapacitated make meaningful healthcare decisions?

One option is to petition the court to appoint a guardian who is empowered make healthcare decisions for your loved one that are in his or her best interests.  The downside of guardianship proceedings is that they can be time-consuming, stressful, and expensive.  A guardianship case can take up to 90 days and involve multiple court appearances.  The court often appoints a attorney, called a guardian ad litem, whose duty it is investigate and make a recommendation to the court as what would be in your loved one’s best interests.  If the guardianship is contested, it may require involvement of legal counsel for both you and your loved one.  If a guardian is appointed, the cost of the guardianship proceedings are paid out of your loved one’s assets. 

A more efficient option is for your loved one to authorize someone to make healthcare decisions for them ahead of time in case he or she becomes incapacitated.  In Wisconsin, this can be accomplished through a health care power of attorney.  A health care power of attorney is a document in which your loved one (the principal) designates someone else (the agent) to make health care decisions on his or her behalf if he or she ever becomes incapacitated. Health care powers of attorney can be created quickly and at a fraction of the cost of a guardianship proceeding.  In doing so, your family avoids the time, stress, and expense of going through guardianship proceedings in the event a loved one ever becomes incapacitated and cannot make meaningful healthcare decisions.   Therein lies the power of a power of attorney for healthcare. 

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.