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)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. 155.10(3)(k)6.6. Confirmation that the principal declared that the principal is 18 years of age or older, that the document is the principal’s power of attorney for health care, and that the document was being executed as the principal’s voluntary act. 155.10(3)(k)7.7. Confirmation that each of the remote witnesses and the supervising attorney were able to see the principal, or an individual 18 years of age or older at the express direction and in the physical presence of the principal, sign, and that the principal appeared to be 18 years of age or older and acting voluntarily. 155.10(3)(k)8.8. A description of the audiovisual technology used for the signing process. 155.10(3)(k)9.9. If the power of attorney for health care was not signed in counterpart, a description of the method used to forward the power of attorney for health care to each remote witness for signing and to the supervising attorney after signing. 155.10(3)(k)10.10. If the power of attorney for health care was signed in counterpart, a description of the method used to forward each counterpart to the supervising attorney and, if applicable, how and when the supervising attorney physically compiled the signed paper counterparts into a single document containing the power of attorney for health care, the signature of the principal, and the signatures of the remote witnesses. 155.10(3)(k)11.11. The name, state bar number, and business or residential address of the supervising attorney. 155.10(3)(k)12.12. Any other information that the supervising attorney considers to be material with respect to the principal’s capacity to sign a valid power of attorney for health care, the principal’s and witnesses’ compliance with this section, or any other information that the supervising attorney deems relevant to the execution of the power of attorney for health care. 155.10(3)(L)(L) The affidavit of compliance is attached to the power of attorney for health care. 155.10(3)(m)(m) An affidavit of compliance described in this subsection shall be substantially in the following form: AFFIDAVIT OF COMPLIANCE
State of ....
County of ....
The undersigned, being first duly sworn under oath, states as follows:
This Affidavit of Compliance is executed pursuant to Wis. Stat. § 155.10 (3) to document the execution of the power of attorney for health care of [name of principal] via remote appearance by 2-way, real-time audiovisual communication technology on [date]. 1. The name and residential address of the principal is ....
2. The name and [residential or business] address of remote witness 1 is ....
3. The name and [residential or business] address of remote witness 2 is ....
4. The address within the state of Wisconsin where the principal was physically located at the time the principal signed the power of attorney for health care is ....
5. The address within the state of Wisconsin where remote witness 1 was physically located at the time the remote witness witnessed the principal’s execution of the power of attorney for health care is ....
155.10(3)(m)6.6. The address within the state of Wisconsin where remote witness 2 was physically located at the time the remote witness witnessed the principal’s execution of the power of attorney for health care is .... 155.10(3)(m)7.7. The principal and remote witnesses were all known to each other and to the supervising attorney. - OR - The principal and remote witnesses were not all known to each other and to the supervising attorney. Each produced the following form of photo identification to confirm his or her identity: ....
8. The principal declared that the principal is 18 years of age or older, that the document is the principal’s power of attorney for health care, and that the document was being executed as the principal’s voluntary act.
9. Each of the remote witnesses and the supervising attorney were able to see the principal, or an individual 18 years of age or older at the express direction and in the physical presence of the principal, sign. The principal appeared to be 18 years of age or older and acting voluntarily.
10. The audiovisual technology used for the signing process was ....
11. The power of attorney for health care was not signed in counterpart. The following methods were used to forward the power of attorney for health care to each remote witness for signing and to the supervising attorney after signing. - OR - The power of attorney for health care was signed in counterpart. The following methods were used to forward each counterpart to the supervising attorney. [If applicable] - The supervising attorney physically compiled the signed paper counterparts into a single document containing the power of attorney for health care, the signature of the principal, and the signatures of the remote witnesses on [date] by [e.g., attaching page 7 from each counterpart signed by a remote witness to the back of the power of attorney for health care signed by the principal].
12. The name, state bar number, and business or residential address of the supervising attorney is ....
13. [Optional] Other information that the supervising attorney considers to be material is as follows: ....
.... (signature of supervising attorney)
Subscribed and sworn to before me on .... (date) by .... (name of supervising attorney).
.... (signature of notarial officer)
Stamp
.... (Title of office)
[My commission expires: ....]
155.10 AnnotationWisconsin statutes provide three instruments through which an individual may state healthcare wishes in the event of incapacitation: a declaration to physicians, a do-not-resuscitate order, and a health care power of attorney. These statutory instruments apply under specific circumstances, have their own signature requirements, and may be limited in the extent of authorization they afford. A form will trigger no statutory immunities for healthcare providers when it lacks the features of these statutory documents. A court might conclude, however, that such a form is relevant in discerning a person’s intent. OAG 10-14. 155.20155.20 Health care agent; powers; limitations. 155.20(1)(1) Unless the power of attorney for health care instrument otherwise provides and except as specified in subs. (2) (a) and (b), (3) and (4) and s. 155.60 (2), the health care agent who is known to the health care provider to be available to make health care decisions for the principal has priority over any individual other than the principal to make these health care decisions. 155.20(2)(a)(a) A health care agent may not consent to admission of the principal on an inpatient basis to any of the following: 155.20(2)(b)(b) A principal may be admitted or committed on an inpatient basis to a facility specified in par. (a) 1. to 4. only under the applicable requirements of ch. 51 or 55. 155.20(2)(c)2.2. A health care agent may consent to the admission of a principal to the following facilities, under the following conditions: 155.20(2)(c)2.a.a. To a nursing home, for recuperative care for a period not to exceed 3 months, if the principal is admitted directly from a hospital inpatient unit, unless the hospital admission was for psychiatric care. 155.20(2)(c)2.b.b. If the principal lives with his or her health care agent, to a nursing home or a community-based residential facility, as a temporary placement not to exceed 30 days, in order to provide the health care agent with a vacation or to release temporarily the health care agent for a family emergency. 155.20(2)(c)2.c.c. To a nursing home or a community-based residential facility, for purposes other than those specified in subd. 2. a. and b., if the power of attorney for health care instrument specifically so authorizes and if the principal is not diagnosed as developmentally disabled or as having a mental illness at the time of the proposed admission. 155.20(3)(3) A health care agent may not consent to experimental mental health research or to psychosurgery, electroconvulsive treatment or drastic mental health treatment procedures for the principal. 155.20(4)(4) A health care agent may consent to the withholding or withdrawal of a feeding tube for the principal if the power of attorney for health care instrument so authorizes, unless the principal’s attending health care professional, as defined in s. 154.01 (1r), advises that, in his or her professional judgment, the withholding or withdrawal will cause the principal pain or reduce the principal’s comfort. A health care agent may not consent to the withholding or withdrawal of orally ingested nutrition or hydration unless provision of the nutrition or hydration is medically contraindicated. 155.20(5)(5) The health care agent shall act in good faith consistently with the desires of the principal as expressed in the power of attorney for health care instrument or as otherwise specifically directed by the principal to the health care agent at any time. The health care agent shall act in good faith consistently with any valid declaration executed by the principal under subch. II of ch. 154, except that the provisions of a principal’s valid power of attorney for health care instrument supersede any directly conflicting provisions of a valid declaration executed by the principal under subch. II of ch. 154. In the absence of a specific directive by the principal or if the principal’s desires are unknown, the health care agent shall, in good faith, act in the best interests of the principal in exercising his or her authority. 155.20(6)(6) If the principal is known to be pregnant, the health care agent may make a health care decision on behalf of the principal that the power of attorney for health care instrument authorizes. 155.20(7)(7) If necessary to implement the health care decisions that a health care agent is authorized to make, in accordance with the desires of the principal, the health care agent may sign or otherwise execute any documents, waivers or releases related to the principal’s care or treatment. 155.20 AnnotationMisunderstanding POAs: Advocating for Your Client’s Statutory Autonomy. Resch [nka Juel] & Bennett. Wis. Law. Feb. 2020.
155.30155.30 Power of attorney for health care instrument; form. 155.30(1)(1) A printed form of a power of attorney for health care instrument that is sold or otherwise distributed for use by an individual in this state who does not have the advice of legal counsel shall provide no authority other than the authority to make health care decisions on behalf of the principal and shall contain the following statement in not less than 10-point boldface type: “NOTICE TO PERSON
MAKING THIS DOCUMENT
YOU HAVE THE RIGHT TO MAKE DECISIONS ABOUT YOUR HEALTH CARE. NO HEALTH CARE MAY BE GIVEN TO YOU OVER YOUR OBJECTION, AND NECESSARY HEALTH CARE MAY NOT BE STOPPED OR WITHHELD IF YOU OBJECT.
BECAUSE YOUR HEALTH CARE PROVIDERS IN SOME CASES MAY NOT HAVE HAD THE OPPORTUNITY TO ESTABLISH A LONG-TERM RELATIONSHIP WITH YOU, THEY ARE OFTEN UNFAMILIAR WITH YOUR BELIEFS AND VALUES AND THE DETAILS OF YOUR FAMILY RELATIONSHIPS. THIS POSES A PROBLEM IF YOU BECOME PHYSICALLY OR MENTALLY UNABLE TO MAKE DECISIONS ABOUT YOUR HEALTH CARE.
IN ORDER TO AVOID THIS PROBLEM, YOU MAY SIGN THIS LEGAL DOCUMENT TO SPECIFY THE PERSON WHOM YOU WANT TO MAKE HEALTH CARE DECISIONS FOR YOU IF YOU ARE UNABLE TO MAKE THOSE DECISIONS PERSONALLY. THAT PERSON IS KNOWN AS YOUR HEALTH CARE AGENT. YOU SHOULD TAKE SOME TIME TO DISCUSS YOUR THOUGHTS AND BELIEFS ABOUT MEDICAL TREATMENT WITH THE PERSON OR PERSONS WHOM YOU HAVE SPECIFIED. YOU MAY STATE IN THIS DOCUMENT ANY TYPES OF HEALTH CARE THAT YOU DO OR DO NOT DESIRE, AND YOU MAY LIMIT THE AUTHORITY OF YOUR HEALTH CARE AGENT. IF YOUR HEALTH CARE AGENT IS UNAWARE OF YOUR DESIRES WITH RESPECT TO A PARTICULAR HEALTH CARE DECISION, HE OR SHE IS REQUIRED TO DETERMINE WHAT WOULD BE IN YOUR BEST INTERESTS IN MAKING THE DECISION.
THIS IS AN IMPORTANT LEGAL DOCUMENT. IT GIVES YOUR AGENT BROAD POWERS TO MAKE HEALTH CARE DECISIONS FOR YOU. IT REVOKES ANY PRIOR POWER OF ATTORNEY FOR HEALTH CARE THAT YOU MAY HAVE MADE. IF YOU WISH TO CHANGE YOUR POWER OF ATTORNEY FOR HEALTH CARE, YOU MAY REVOKE THIS DOCUMENT AT ANY TIME BY DESTROYING IT, BY DIRECTING ANOTHER PERSON TO DESTROY IT IN YOUR PRESENCE, BY SIGNING A WRITTEN AND DATED STATEMENT OR BY STATING THAT IT IS REVOKED IN THE PRESENCE OF TWO WITNESSES. IF YOU REVOKE, YOU SHOULD NOTIFY YOUR AGENT, YOUR HEALTH CARE PROVIDERS AND ANY OTHER PERSON TO WHOM YOU HAVE GIVEN A COPY. IF YOUR AGENT IS YOUR SPOUSE OR DOMESTIC PARTNER AND YOUR MARRIAGE IS ANNULLED OR YOU ARE DIVORCED OR THE DOMESTIC PARTNERSHIP IS TERMINATED AFTER SIGNING THIS DOCUMENT, THE DOCUMENT IS INVALID.
YOU MAY ALSO USE THIS DOCUMENT TO MAKE OR REFUSE TO MAKE AN ANATOMICAL GIFT UPON YOUR DEATH. IF YOU USE THIS DOCUMENT TO MAKE OR REFUSE TO MAKE AN ANATOMICAL GIFT, THIS DOCUMENT REVOKES ANY PRIOR RECORD OF GIFT THAT YOU MAY HAVE MADE. YOU MAY REVOKE OR CHANGE ANY ANATOMICAL GIFT THAT YOU MAKE BY THIS DOCUMENT BY CROSSING OUT THE ANATOMICAL GIFTS PROVISION IN THIS DOCUMENT.
DO NOT SIGN THIS DOCUMENT UNLESS YOU CLEARLY UNDERSTAND IT.
IT IS SUGGESTED THAT YOU KEEP THE ORIGINAL OF THIS DOCUMENT ON FILE WITH YOUR PHYSICIAN OR OTHER PRIMARY CARE PROVIDER.”
155.30(2)(2) A power of attorney for health care instrument that is other than that specified in sub. (1) or (3) shall include either the notice specified in sub. (1) or a certificate signed by the principal’s lawyer stating: “I am a lawyer authorized to practice law in Wisconsin. I have advised my client concerning his or her rights in connection with this power of attorney for health care and the applicable law.” 155.30(3)(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 a valid instrument, a statement explaining that valid witnesses 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: POWER OF ATTORNEY FOR HEALTH CARE
Document made this.... day of.... (month),.... (year).
CREATION OF POWER OF ATTORNEY
FOR HEALTH CARE
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.
In addition, I may, by this document, specify my wishes with respect to making an anatomical gift upon my death.
DESIGNATION OF HEALTH CARE AGENT
If I am no longer able to make health care decisions for myself, due to my incapacity, I hereby designate.... (print name, address and telephone number) to be my health care agent for the purpose of making health care decisions on my behalf. If he or she is ever unable or unwilling to do so, I hereby designate.... (print name, address and telephone number) to be my alternate health care agent for the purpose of making health care decisions on my behalf. Neither my health care agent nor my alternate health care agent whom I have designated is my health care provider, an employee of my health care provider, an employee of a health care facility in which I am a patient or a spouse of any of those persons, unless he or she is also my relative. For purposes of this document, “incapacity” exists if 2 physicians or a physician and a psychologist, nurse practitioner, or physician assistant who have personally examined me sign a statement that specifically expresses their opinion that I have a condition that means that I am unable to receive and evaluate information effectively or to communicate decisions to such an extent that I lack the capacity to manage my health care decisions. A copy of that statement must be attached to this document.
