Chapter 155

CHAPTER 155

POWER OF ATTORNEY FOR HEALTH CARE

155.01   Definitions.

155.05   Power of attorney for health care.

155.10   Power of attorney for health care instrument; execution; witnesses.

155.20   Health care agent; powers; limitations.

155.30   Power of attorney for health care instrument; form.

155.40   Revocation of power of attorney for health care.

155.50   Duties and immunities.

155.60   Safeguards.

155.65   Filing power of attorney instrument.

155.70   General provisions.

155.80   Penalties.

155.01 155.01 Definitions. In this chapter:

155.01(1g) (1g) “Advanced practice clinician” means any of the following:

155.01(1g)(a) (a) A psychologist.

155.01(1g)(b) (b) A registered nurse under ch. 441 who is currently certified as a nurse practitioner by a national certifying body approved by the board of nursing.

155.01(1g)(c) (c) A physician assistant who a physician responsible for overseeing the physician assistant’s practice affirms is competent to conduct evaluations of the capacity of patients to manage health care decisions.

155.01(1r) (1r) “Department” means the department of health services.

155.01(2m) (2m) “Feeding tube” means a medical tube through which nutrition or hydration is administered into the vein, stomach, nose, mouth or other body opening of a declarant.

155.01(3) (3) “Health care” means any care, treatment, service or procedure to maintain, diagnose or treat an individual’s physical or mental condition.

155.01(4) (4) “Health care agent” means an individual designated by a principal to make health care decisions on behalf of the principal or, if that individual is unable or unwilling to make those decisions, an alternate individual designated by the principal to do so.

155.01(5) (5) “Health care decision” means an informed decision in the exercise of the right to accept, maintain, discontinue or refuse health care.

155.01(6) (6) “Health care facility” means a facility, as defined in s. 647.01 (4), or any hospital, nursing home, community-based residential facility, county home, county infirmary, county hospital, county mental health center or other place licensed or approved by the department under s. 49.70, 49.71, 49.72, 50.02, 50.03, 50.35, 51.08 or 51.09 or a facility under s. 45.50, 51.05, 51.06, 233.40, 233.41, 233.42 or 252.10.

155.01(7) (7) “Health care provider” means a nurse licensed or permitted under ch. 441, a chiropractor licensed under ch. 446, a dentist or dental therapist licensed under subch. I of ch. 447, a physician, physician assistant, perfusionist, podiatrist, physical therapist, physical therapist assistant, occupational therapist, occupational therapy assistant, or genetic counselor licensed under ch. 448, a naturopathic doctor licensed under ch. 466, a person practicing Christian Science treatment, an optometrist licensed under ch. 449, a psychologist who is licensed under ch. 455, who is exercising the temporary authorization to practice, as defined in s. 455.50 (2) (o), in this state, or who is practicing under the authority to practice interjurisdictional telepsychology, as defined in s. 455.50 (2) (b), a dentist who holds a compact privilege under subch. II of ch. 447, a physical therapist or physical therapist assistant who holds a compact privilege under subch. XI of ch. 448, an occupational therapist or occupational therapy assistant who holds a compact privilege under subch. XII of ch. 448, a physician assistant who holds a compact privilege under subch. XIII of ch. 448, a partnership thereof, a corporation or limited liability company thereof that provides health care services, a cooperative health care association organized under s. 185.981 that directly provides services through salaried employees in its own facility, or a home health agency, as defined in s. 50.49 (1) (a).

155.01 Note NOTE: Sub. (7) is shown as amended by 2023 Wis. Acts 81, 87, and 88 and as merged by the legislative reference bureau under s. 13.92 (2) (i). The cross-reference to subch. XI of ch. 448 was changed from subch. X of ch. 448 and the cross-reference to subch. XII of ch. 448 was changed from subch. XI of ch. 448 by the legislative reference bureau under s. 13.92 (1) (bm) 2. to reflect the renumbering under s. 13.92 (1) (bm) 2. of subchs. X and XI of ch. 448.

155.01(8) (8) “Incapacity” means the inability to receive and evaluate information effectively or to communicate decisions to such an extent that the individual lacks the capacity to manage his or her health care decisions.

155.01(9) (9) “Multipurpose senior center” means a facility that is the focal point for the delivery of services in a community to individuals aged 60 or older for purposes of the state plan under 42 USC 3027.

155.01(10) (10) “Power of attorney for health care” means the designation, by an individual, of another as his or her health care agent for the purpose of making health care decisions on his or her behalf if the individual cannot, due to incapacity.

155.01(11) (11) “Principal” means an individual who executes a power of attorney for health care.

155.01(12) (12) “Relative” means an individual related by blood within the 3rd degree of kinship as computed under s. 990.001 (16); a spouse, domestic partner under ch. 770, or an individual related to a spouse or domestic partner within the 3rd degree as so computed; and includes an individual in an adoptive relationship within the 3rd degree.

155.01 History History: 1989 a. 200; 1991 a. 281; 1993 a. 27, 105, 112, 490; 1995 a. 27 ss. 4395, 9126 (19); 1997 a. 35, 67; 1999 a. 9, 180; 2001 a. 70, 89, 105; 2005 a. 22; 2007 a. 20 s. 9121 (6) (a); 2009 a. 28, 165; 2019 a. 90, 100; 2021 a. 22; 2021 a. 23 s. 71; 2021 a. 123, 130, 131, 251; 2023 a. 81, 87, 88; s. 13.92 (1) (bm) 2.; s. 13.92 (2) (i).

155.05 155.05 Power of attorney for health care.

155.05(1) (1) An individual who is of sound mind and has attained age 18 may voluntarily execute a power of attorney for health care. An individual for whom an adjudication of incompetence and appointment of a guardian of the person is in effect in this state is presumed not to be of sound mind for purposes of this subsection executing a power of attorney for health care.

155.05(2) (2) Unless otherwise specified in the power of attorney for health care instrument, an individual’s power of attorney for health care takes effect upon a finding of incapacity by 2 physicians, as defined in s. 448.01 (5), or one physician and one licensed advanced practice clinician, who personally examine the principal and sign a statement specifying that the principal has incapacity. Mere old age, eccentricity or physical disability, either singly or together, are insufficient to make a finding of incapacity. Neither of the individuals who make a finding of incapacity may be a relative of the principal or have knowledge that he or she is entitled to or has a claim on any portion of the principal’s estate. A copy of the statement, if made, shall be appended to the power of attorney for health care instrument.

155.05(3) (3) No health care provider for an individual, employee of that health care provider or employee of a health care facility in which an individual is a patient or resides, or a spouse of any of those providers or employees, may be designated by the individual as a health care agent unless the health care provider, employee or spouse of the provider or employee is a relative of the individual.

155.05(4) (4) The desires of a principal who does not have incapacity supersede the effect of his or her power of attorney for health care at all times.

155.05(5) (5) A principal may designate an alternate individual to serve as his or her health care agent in the event that the health care agent first designated is unable or unwilling to do so.

155.05 History History: 1989 a. 200; 2005 a. 387; 2019 a. 90.

155.05 Annotation Wisconsin’s Power of Attorney for Health Care. Sweet. Wis. Law. Sept. 1990.

155.05 Annotation Planning Ahead for Incapacity. Shapiro. Wis. Law. Aug. 1991.

155.10 155.10 Power of attorney for health care instrument; execution; witnesses.

155.10(1) (1) A valid power of attorney for health care instrument shall be all of the following:

155.10(1)(a) (a) In writing.

155.10(1)(b) (b) Dated and signed by the principal or by an individual who has attained age 18, at the express direction and in the presence of the principal.

155.10(1)(c) (c) Signed in the presence of 2 witnesses who meet the requirements of sub. (2).

155.10(1)(d) (d) Voluntarily executed.

155.10(2) (2) 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 of the power of attorney for health care instrument may, at the time of the execution, be any of the following:

155.10(2)(a) (a) Related to the principal by blood, marriage, or adoption, or the domestic partner under ch. 770 of the individual.

155.10(2)(b) (b) Have knowledge that he or she is entitled to or has a claim on any portion of the principal’s estate.

155.10(2)(c) (c) Directly financially responsible for the principal’s health care.

155.10(2)(d) (d) An individual who is a health care provider who is serving the principal at the time of execution, an employee, other than a chaplain or a social worker, of the health care provider or an employee, other than a chaplain or a social worker, of an inpatient health care facility in which the principal is a patient.

155.10(2)(e) (e) The principal’s health care agent.

155.10(3) (3) For purposes of sub. (1) (c), “in the presence of” includes the simultaneous remote appearance by 2-way, real-time audiovisual communication technology if all of the following conditions are satisfied:

155.10(3)(a) (a) The signing is supervised by an attorney in good standing licensed by this state. The supervising attorney may serve as one of the remote witnesses.

155.10(3)(b) (b) The principal attests to being physically located in this state during the 2-way, real-time audiovisual communication.

155.10(3)(c) (c) Each remote witness attests to being physically located in this state during the 2-way, real-time audiovisual communication.

155.10(3)(d) (d) The principal and each of the remote witnesses identify themselves. If the principal and remote witnesses are not personally known to each other and to the supervising attorney, the principal and each of the remote witnesses display photo identification.

155.10(3)(e) (e) The principal identifies anyone else present in the same physical location as the principal and, if possible, the principal makes a visual sweep of the principal’s physical surroundings so that the supervising attorney and each remote witness can confirm the presence of any other person.

155.10(3)(f) (f) The principal displays the power of attorney for health care, confirms the total number of pages and the page number of the page on which the principal’s signature will be affixed, and declares to the remote witnesses and the supervising attorney all of the following:

155.10(3)(f)1. 1. That the principal is 18 years of age or older.

155.10(3)(f)2. 2. That the document is the principal’s power of attorney for health care.

155.10(3)(f)3. 3. That the document is being executed as a voluntary act.

155.10(3)(g) (g) The principal, or an individual 18 years of age or older at the express direction and in the physical presence of the principal, dates and signs the power of attorney for health care in a manner that allows each of the remote witnesses and the supervising attorney to see the execution.

155.10(3)(h) (h) The audiovisual communication technology used allows communication by which a person is able to see, hear, and communicate in an interactive way with another person in real time using electronic means, except that if the principal, a remote witness, or the supervising attorney has an impairment that affects hearing, sight, or speech, assistive technology or learned skills may be substituted for audio or visual if it allows that person to actively participate in the signing in real time.

155.10(3)(i) (i) The power of attorney for health care indicates that it is being executed pursuant to this subsection.

155.10(3)(j) (j) One of the following occurs:

155.10(3)(j)1. 1. The principal, or another person at the direction of the principal, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original power of attorney for health care to the supervising attorney within a reasonable time after execution. The supervising attorney then personally delivers or transmits by U.S. mail or commercial courier service the entire signed original power of attorney for health care to the remote witnesses within a reasonable time. The first remote witness to receive the original power of attorney for health care signs and dates the original power of attorney for health care as a witness and forwards the entire signed original power of attorney for health care by personal delivery or U.S. mail or commercial courier service within a reasonable time to the 2nd remote witness, who signs and dates it as a witness and forwards the entire signed original power of attorney for health care by personal delivery or U.S. mail or commercial courier service within a reasonable time to the supervising attorney.

155.10(3)(j)2. 2. The principal, or another person at the direction of the principal, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original power of attorney for health care to the supervising attorney within a reasonable time after execution and transmits by facsimile or electronic means a legible copy of the entire signed power of attorney for health care directly to each remote witness within a reasonable time after execution. Each remote witness then signs the transmitted copy of the power of attorney for health care as a witness and personally delivers or transmits by U.S. mail or commercial courier service the entire signed copy of the power of attorney for health care to the supervising attorney within a reasonable time after witnessing. The signed original and signed copies together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving the signed original and signed copies, compiles the signed original and signed copies into one document by attaching the signature pages of each remote witness to the original signed by or on behalf of the principal, in which case the compiled document shall constitute the original.

155.10(3)(j)3. 3. The principal and each of the remote witnesses sign identical copies of the original. The principal, or another person at the direction of the principal, and each of the remote witnesses personally deliver or transmit by U.S. mail or commercial courier service the signed originals to the supervising attorney within a reasonable time after execution. All of the signed originals together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving all signed originals, compiles the originals into one document by attaching the signature pages of each remote witness to the original signed by or on behalf of the principal, in which case the compiled document shall constitute the original.

155.10(3)(k) (k) The supervising attorney completes an affidavit of compliance that contains the following information:

155.10(3)(k)1. 1. The name and residential address of the principal.

155.10(3)(k)2. 2. The name and residential or business address of each remote witness.

155.10(3)(k)3. 3. The address within this state where the principal was physically located at the time the principal signed the power of attorney for health care.

155.10(3)(k)4. 4. The address within this state where each remote witness was physically located at the time the remote witness witnessed the principal’s execution of the power of attorney for health care.

155.10(3)(k)5. 5. A statement that the principal and remote witnesses were all known to each other and the supervising attorney or a description of the form of photo identification used to confirm the identity of the principal and each remote witness.