LRB-1608/1

KP:ahe

2019 - 2020 LEGISLATURE

2019 Assembly BILL 745

January 16, 2020 - Introduced by Representatives Doyle, Billings, Emerson, Zamarripa, Pope, Anderson, Spreitzer, Considine, Stubbs, Subeck, Vruwink, Ohnstad and Bowen, cosponsored by Senators Shilling, L. Taylor and Schachtner. Referred to Committee on Judiciary.

AB745,1,6 An Act to renumber and amend 154.03 (1) (d) and 155.10 (2) (d); to amend 154.02 (1), 154.03 (1) (intro.), 154.03 (2), 154.07 (1) (b) 1., 154.07 (1) (b) 2., 155.10 (title), 155.10 (1) (c), 155.10 (2) (intro.) and 155.30 (3); and to create 154.03 (1) (d) 4. and 155.10 (2) (d) 4. of the statutes; relating to: notarial officers taking acknowledgments of health care powers of attorney and declarations to physicians.

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: