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.

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.