AB745: Bill Text

Analysis by the Legislative Reference Bureau

Under this bill, a power of attorney for health care instrument is validly executed if an individual who grants authority to a health care agent makes an acknowledgment of the instrument before an authorized notarial officer. Current law requires two witnesses in order to execute a health care power of attorney instrument. Additionally, the bill allows an authorized notarial officer who is employed by an individual's health care provider or inpatient health care facility to take an acknowledgement of the individual's health care power of attorney instrument if the notarial officer satisfies all of the following: 1) is not related by blood, marriage, adoption, or domestic partnership to the individual executing the instrument; 2) does not have knowledge of being entitled to a portion of the individual's estate; 3) is not directly financially responsible for the individual's health care; and 4) is not a finance or billing officer of the individual's inpatient health care facility. Under current law, a witness to a health care power of attorney instrument must meet those requirements, and also may not be an employee, other than a chaplain or a social worker, of the individual's health care provider or inpatient health care facility. A health care power of attorney designates another person as an agent to make health care decisions on behalf of an individual who is incapable of making those decisions.

The bill also allows an individual to execute a declaration to physicians, also known as a living will, if the individual makes an acknowledgement of the declaration before an authorized notarial officer. Current law requires two witnesses in order to execute a declaration to physicians. The bill allows an authorized notarial officer who is employed by the individual's health care provider or inpatient health care facility to take an acknowledgement of the individual's declaration to physicians if the notarial officer satisfies all of the following: 1) is not related by blood, marriage, adoption, or domestic partnership to the individual executing the declaration; 2) does not have knowledge of being entitled to a portion of the individual's estate; 3) is not directly financially responsible for the individual's health care; and 4) is not a finance or billing officer of the individual's inpatient health care facility. Under current law, a witness to a declaration to physicians must meet those requirements, and also may not be an employee, other than a chaplain or a social worker, of the individual's health care provider or inpatient health care facility. If an individual has executed a declaration, and is certified to have a terminal condition or to be in a persistent vegetative state, in certain situations the declaration authorizes the withholding or withdrawal of life-sustaining procedures or of feeding tubes from the individual.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB745,1 Section 1 . 154.02 (1) of the statutes is amended to read:

AB745,2,4 154.02 (1) “Declaration" means a written , witnessed document voluntarily executed by the declarant and witnessed or acknowledged under s. 154.03 (1), but is not limited in form or substance to that provided in s. 154.03 (2).

AB745,2 Section 2. 154.03 (1) (intro.) of the statutes is amended to read:

AB745,3,23 154.03 (1) (intro.) Any person of sound mind and 18 years of age or older may at any time voluntarily execute a declaration, which shall take effect on the date of execution, authorizing the withholding or withdrawal of life-sustaining procedures or of feeding tubes when the person is in a terminal condition or is in a persistent vegetative state. A declarant may not authorize the withholding or withdrawal of any medication, life-sustaining procedure or feeding tube if the declarant's attending physician advises that, in his or her professional judgment, the withholding or withdrawal will cause the declarant pain or reduce the declarant's comfort and the pain or discomfort cannot be alleviated through pain relief measures. A declarant may not authorize the withholding or withdrawal of nutrition or hydration that is administered or otherwise received by the declarant through means other than a feeding tube unless the declarant's attending physician advises that, in his or her professional judgment, the administration is medically contraindicated. A declaration must be signed by the declarant in the presence of 2 witnesses or the declarant must make an acknowledgment of the declaration before a notarial officer authorized under s. 706.07 to take acknowledgments. If the declarant is physically unable to sign a declaration, the declaration must be signed in the declarant's name by one of the witnesses witness or some other person at the declarant's express direction and in his or her presence; such a proxy signing shall either take place or be acknowledged by the declarant in the presence of 2 witnesses or be acknowledged by the declarant before a notarial officer authorized under s. 706.07 to take acknowledgments. The declarant is responsible for notifying his or her attending physician of the existence of the declaration. An attending physician who is so notified shall make the declaration a part of the declarant's medical records. No witness to the execution of the declaration or notarial officer who takes an acknowledgment of the declaration may, at the time of the execution, be any of the following:

AB745,3 Section 3 . 154.03 (1) (d) of the statutes is renumbered 154.03 (1) (d) (intro.) and amended to read:

AB745,4,1 154.03 (1) (d) (intro.) An individual who is a any of the following:

AB745,4,3 1. A health care provider, as defined in s. 155.01 (7), who is serving the declarant at the time of execution, an.

AB745,4,6 2. An employee, other than an employee authorized as a notarial officer under s. 706.07, a chaplain, or a social worker, of the a health care provider or an who is serving the declarant at the time of execution.

AB745,4,9 3. An employee, other than an employee authorized as a notarial officer under s. 706.07, a chaplain, or a social worker, of an inpatient health care facility in which the declarant is a patient.

AB745,4 Section 4 . 154.03 (1) (d) 4. of the statutes is created to read:

AB745,4,12 154.03 (1) (d) 4. A finance or billing officer of an inpatient health care facility in which the declarant is a patient.

AB745,5 Section 5. 154.03 (2) of the statutes is amended to read:

AB745,5,5 154.03 (2) The department shall prepare and provide copies of the declaration and accompanying information for distribution in quantities to health care professionals, hospitals, nursing homes, county clerks and local bar associations and individually to private persons. The department shall include, in information accompanying the declaration, at least the statutory definitions of terms used in the declaration, statutory restrictions on who may be witnesses a witness to or be a notarial officer that takes an acknowledgment of a valid declaration, a statement explaining that valid witnesses or notarial officers acting in good faith are statutorily immune from civil or criminal liability, an instruction to potential declarants to read and understand the information before completing the declaration and a statement explaining that an instrument may, but need not be, filed with the register in probate of the declarant's county of residence. The department may charge a reasonable fee for the cost of preparation and distribution. The declaration distributed by the department of health services shall be easy to read, the type size may be no smaller than 10 point, and the declaration shall be in the following form, setting forth on the first page the wording before the ATTENTION statement and setting forth on the 2nd page the ATTENTION statement and remaining wording:

AB745,5,6 Declaration to physicians

AB745,5,7 (WISCONSIN LIVING WILL)

AB745,5,13 I,...., being of sound mind, voluntarily state my desire that my dying not be prolonged under the circumstances specified in this document. Under those circumstances, I direct that I be permitted to die naturally. If I am unable to give directions regarding the use of life-sustaining procedures or feeding tubes, I intend that my family and physician honor this document as the final expression of my legal right to refuse medical or surgical treatment.

AB745,5,17 1. If I have a TERMINAL CONDITION, as determined by 2 physicians who have personally examined me, I do not want my dying to be artificially prolonged and I do not want life-sustaining procedures to be used. In addition, the following are my directions regarding the use of feeding tubes:

AB745,5,18 .... YES, I want feeding tubes used if I have a terminal condition.

AB745,5,19 .... NO, I do not want feeding tubes used if I have a terminal condition.

AB745,5,20 If you have not checked either box, feeding tubes will be used.

AB745,5,23 2. If I am in a PERSISTENT VEGETATIVE STATE, as determined by 2 physicians who have personally examined me, the following are my directions regarding the use of life-sustaining procedures:

AB745,5,25 .... YES, I want life-sustaining procedures used if I am in a persistent vegetative state.

AB745,6,2 .... NO, I do not want life-sustaining procedures used if I am in a persistent vegetative state.

AB745,6,3 If you have not checked either box, life-sustaining procedures will be used.

AB745,6,6 3. If I am in a PERSISTENT VEGETATIVE STATE, as determined by 2 physicians who have personally examined me, the following are my directions regarding the use of feeding tubes:

AB745,6,7 .... YES, I want feeding tubes used if I am in a persistent vegetative state.

AB745,6,8 .... NO, I do not want feeding tubes used if I am in a persistent vegetative state.

AB745,6,9 If you have not checked either box, feeding tubes will be used.

AB745,6,12 If you are interested in more information about the significant terms used in this document, see section 154.01 of the Wisconsin Statutes or the information accompanying this document.

AB745,6,14 ATTENTION: You and the 2 witnesses or a notarial officer must sign the document at the same time.

AB745,6,15 Signed ....   Date ....

AB745,6,16 Address ....   Date of birth ....

AB745,6,20 I believe that the person signing this document is of sound mind. I am an adult and am not related to the person signing this document by blood, marriage or adoption. I am not entitled to and do not have a claim on any portion of the person's estate and am not otherwise restricted by law from being a witness.

AB745,6,21 Witness signature ....   Date signed ....

AB745,6,22 Print name ....

AB745,6,24 Witness signature ....   Date signed ....

AB745,6,25 Print name ....

AB745,7,1 Notarial officer:

AB745,7,2 (print) Name....

AB745,7,3 State of ....

AB745,7,4 County of ....

AB745,7,6 This document was acknowledged before me on .... (date), by .... (name of principal).

AB745,7,7 (Seal, if any)

AB745,7,8 Signature of notary ....

AB745,7,9 My commission expires: ....

AB745,7,10 DIRECTIVES TO ATTENDING PHYSICIAN

AB745,7,14 1. This document authorizes the withholding or withdrawal of life-sustaining procedures or of feeding tubes when 2 physicians, one of whom is the attending physician, have personally examined and certified in writing that the patient has a terminal condition or is in a persistent vegetative state.

AB745,7,20 2. The choices in this document were made by a competent adult. Under the law, the patient's stated desires must be followed unless you believe that withholding or withdrawing life-sustaining procedures or feeding tubes would cause the patient pain or reduced comfort and that the pain or discomfort cannot be alleviated through pain relief measures. If the patient's stated desires are that life-sustaining procedures or feeding tubes be used, this directive must be followed.

AB745,7,23 3. If you feel that you cannot comply with this document, you must make a good faith attempt to transfer the patient to another physician who will comply. Refusal or failure to make a good faith attempt to do so constitutes unprofessional conduct.

AB745,7,25 4. If you know that the patient is pregnant, this document has no effect during her pregnancy.

AB745,8,1 * * * * *

AB745,8,4 The person making this living will may use the following space to record the names of those individuals and health care providers to whom he or she has given copies of this document:

AB745,8,5 .................................................................

AB745,8,6 .................................................................

AB745,8,7 .................................................................

AB745,6 Section 6 . 154.07 (1) (b) 1. of the statutes is amended to read:

AB745,8,12 154.07 (1) (b) 1. No person who acts in good faith as a witness to a declaration or takes an acknowledgment of a declaration under this subchapter may be held civilly or criminally liable for participating in the withholding or withdrawal of life-sustaining procedures or feeding tubes under this subchapter.

AB745,7 Section 7 . 154.07 (1) (b) 2. of the statutes is amended to read:

AB745,8,15 154.07 (1) (b) 2. Subdivision 1. does not apply to a person who acts as a witness or takes an acknowledgment in violation of s. 154.03 (1).

AB745,8 Section 8 . 155.10 (title) of the statutes is amended to read:

AB745,8,18 155.10 (title) Power of attorney for health care instrument; execution; witnesses and notarial officers.

AB745,9 Section 9 . 155.10 (1) (c) of the statutes is amended to read:

AB745,8,23 155.10 (1) (c) Signed in the presence of 2 witnesses who meet the requirements of sub. (2) or the principal makes an acknowledgment of the instrument before a notarial officer authorized under s. 706.07 to take acknowledgments who meets the requirements of sub. (2).

AB745,10 Section 10 . 155.10 (2) (intro.) of the statutes is amended to read:

AB745,9,5 155.10 (2) (intro.) A witness to the execution of a valid power of attorney for health care instrument shall be an individual who has attained age 18. No witness to the execution or notarial officer who takes an acknowledgment of the power of attorney for health care instrument may, at the time of the execution, be any of the following:

AB745,11 Section 11 . 155.10 (2) (d) of the statutes is renumbered 155.10 (2) (d) (intro.) and amended to read:

AB745,9,8 155.10 (2) (d) (intro.) An individual who is a any of the following:

AB745,9,10 1. A health care provider who is serving the principal at the time of execution, an.

AB745,9,13 2. An employee, other than an employee authorized as a notarial officer under s. 706.07, a chaplain, or a social worker, of the a health care provider or an who is serving the principal at the time of execution.

AB745,9,16 3. An employee, other than an employee authorized as a notarial officer under s. 706.07, a chaplain, or a social worker, of an inpatient health care facility in which the principal is a patient.

AB745,12 Section 12 . 155.10 (2) (d) 4. of the statutes is created to read:

AB745,9,19 155.10 (2) (d) 4. A finance or billing officer of an inpatient health care facility in which the principal is a patient.

AB745,13 Section 13 . 155.30 (3) of the statutes is amended to read:

AB745,9,25 155.30 (3) The department shall prepare and provide copies of a power of attorney for health care instrument and accompanying information for distribution in quantities to health care professionals, hospitals, nursing homes, multipurpose senior centers, county clerks, and local bar associations and individually to private persons. The department shall include, in information accompanying the copy of the instrument, at least the statutory definitions of terms used in the instrument, statutory restrictions on who may be witnesses to or be a notarial officer that takes an acknowledgment of a valid instrument, a statement explaining that valid witnesses or notarial officers acting in good faith are statutorily immune from civil or criminal liability and a statement explaining that an instrument may, but need not, be filed with the register in probate of the principal's county of residence. The department may charge a reasonable fee for the cost of preparation and distribution. The power of attorney for health care instrument distributed by the department shall include the notice specified in sub. (1) and shall be in the following form:

AB745,10,10 POWER OF ATTORNEY FOR HEALTH CARE

AB745,10,11 Document made this.... day of.... (month),.... (year).

AB745,10,12 CREATION OF POWER OF ATTORNEY

AB745,10,13 FOR HEALTH CARE

AB745,10,21 I,.... (print name, address and date of birth), being of sound mind, intend by this document to create a power of attorney for health care. My executing this power of attorney for health care is voluntary. Despite the creation of this power of attorney for health care, I expect to be fully informed about and allowed to participate in any health care decision for me, to the extent that I am able. For the purposes of this document, “health care decision" means an informed decision to accept, maintain, discontinue or refuse any care, treatment, service or procedure to maintain, diagnose or treat my physical or mental condition.

AB745,10,23 In addition, I may, by this document, specify my wishes with respect to making an anatomical gift upon my death.

AB745,10,24 DESIGNATION OF HEALTH CARE AGENT