By the GWAAR Legal Services Team (for reprint)
April 16 has been denoted as National Healthcare Decisions Day. This movement became nationally recognized in 2008 to help raise awareness of the importance of advance care planning, to empower people to draft advance planning documents, and to encourage discussions with family members and medical professionals about healthcare wishes.
The law on advance care planning documents and authority varies by state. In Wisconsin, legal practitioners typically recommend the following documents:
- Power of attorney for finances
- Power of attorney for healthcare
- Living Will (optional)
- Authorization for Final Disposition (burial & funeral arrangements)
Advance planning documents can be executed with or without an attorney. While the basic forms are available online for free, an attorney can provide legal advice and counseling regarding the person’s specific circumstances to ensure that their wishes are stated and carried out as desired. It is important that the healthcare power of attorney is signed in front of two unrelated witnesses. While the power of attorney for finances does not technically require witnesses, it is granted important protections under Wisconsin law if it is notarized when signed.
Powers of attorney (POAs) provide authority for someone to make financial and/or healthcare decisions for another person. Wisconsin is not a “next of kin” state, meaning that family members do not have the ability to make healthcare decisions on behalf of another person just by virtue of being a relative. Powers of attorney documents are valid once they are drafted and signed, but the agents do not have authority to act on behalf of the principal until the document is activated. Healthcare POAs are usually activated upon subsequent incapacity of the principal. Financial POAs can be activated immediately or upon a future event.
A Living Will is a document which on its face may look similar to a power of attorney for healthcare; however, there are several important differences. In writing a Living Will, a person is making a directive to his or her doctor regarding the person’s end of life decisions. There is no authority given to another person to act as an agent on the principal’s behalf, as is the case in the power of attorney documents. Additionally, a Living Will only contemplates and provides for actions in very specific circumstances. By contrast, a power of attorney for healthcare provides for an agent to have broad authority to make decisions in a wide range of situations. A person can have both a power of attorney for healthcare and a Living Will, if desired, or one or the other. It’s important that if a person has both documents that the wishes expressed within them be consistent.
Finally, the Authorization for Final Disposition allows a person to indicate his or her funeral and burial preferences in writing and to appoint an agent to carry out those wishes upon the person’s death. This document is recommended as part of a comprehensive estate plan because the authority under a power of attorney ends upon the principal’s death. If no agent is appointed under an Authorization for Final Disposition form, Wisconsin law indicates that a surviving spouse, child, parent, or sibling (in that respective order) can make funeral and burial decisions on behalf of a decedent.
For free forms and more information on advance directives, visit the Wisconsin Guardianship Support Center’s website at https://gwaar.org/guardianship-resources. The GSC provides legal information about powers of attorneys, advance directives, and guardianships via a helpline at (855) 409-9410 or email at guardian@gwaar.org.
The Department of Health Services also has the statutory power of attorney and Living Will forms available on its website at https://www.dhs.wisconsin.gov/forms/advdirectives/adformspoa.htm.
Myth-busting false beliefs about POA’s:
1.I do not need a POA because my spouse or family can make decisions on my behalf. Wisconsin is not a “next of kin” state, meaning that family members do not have inherent authority to make decisions solely based on their relationship with you. Authority must be specifically given to a person through a POA or a court order.
2. I do not need a POA until I am older or sick. Too often, people wait until it is too late to do advance planning. If a person no longer has the capacity to execute a POA document, then a guardianship action in court may be needed. All adults over the age of 18 should consider creating advance directives.
3. Once I create a POA, I’m set for life. The POA documents are not locked in stone. They can be revoked or re-executed at any time. The Wisconsin Medical Society recommends that advance planning documents be reviewed if any of the 4 “d’s” occur:
- Death (if any of the agents named in your POA pass away)
- Decade (if it has been more than 10 years since you drafted or reviewed your documents)
- Divorce (if you subsequently get a divorce after drafting your POA—in Wisconsin, this invalidates your documents by law)
- Disease (if you become sick or are diagnosed with an illness)
For free documents and resources go to:
Wisconsin Medical Society
https://wismed.org/wismed/wismed/about-us/advance-care-planning.aspx
For assistance and questions
https://drive.google.com/file/d/1hQRKHcXCEZQ21pdEYlTo5ExaOuQbr6-L/view
Wisconsin Guardianship Support Center
