The Power of Attorney for Health Care (hereafter referred to as HCPOA) may very well be one of
the most important documents that a person will sign in their lifetime. It addresses end of life
decisions, entry into long term nursing care (nursing home), removal or withholding a feeding
tube, medical care needs such as surgery, among others. You may have been asked at your doctor’s
office whether you have an “Advanced Directive”. They would be referring to a HСРОА.
As defined a “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”. Section 155.01 (10) Wisconsin statutes.
The HCPOA becomes effective when a person is found to be incapacitated. As defined “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”.
Incapacity can only be determined “…upon a finding of incapacity by 2 physicians…or one
physician and one licensed advanced practice clinician, who personally examine the principal and
sign a statement specifying that the principal has incapacity”. (The principal is the person in need
of medical care.) Section 155.01 (8), and 155.05 (2) Wisconsin statutes.
Just because a person is disabled (an example would be someone who is unable to move due to
paralysis) or is elderly does not mean that the person is incapacitated and unable to make their own
health care decisions. Further, a designated health care agent (the person you have chosen to make
healthcare decisions on your behalf) does not have unlimited decision-making authority overyour
health care. For example, your agent cannot admit you to a mental health care facility for the
treatment of mental diseases or admit you to a state mental health care facility. Likewise, your
designated health care agent does not have the authority to subject you to experimental mental
health research.
Before you sign the HCPOA you are given the option to be admitted to a nursing home or not.
You will also have the option to grant your health care agent the authority to withdraw or withhold
the feeding tube. You can specify other instructions to keep you comfortable with medication even
if you have a terminal condition.
The granting and/or limiting authority are illustrations and are not exhaustive. There is much more
to the HCPOA and the best way for a person to fully understand it and how it functions is to get
the advice of an attorney.
Another critical aspect is the proper execution of the НСРОА. А misplaced signature or other
mistake in signing the document may render it unenforceable and of no use to you at a time when
it really counts. In general, the HCPOA must be voluntarily signed and dated by you in the
presence of 2 witnesses. Section 155.10 (1) (2) Wisconsin Statutes.
The consequences of a mistake in the drafting or execution of the HCPOA can be costly in time
and expense. If a health care decision is needed, such as admission to a health care facility, your
family’s only option is to petition the court for guardianship. The requirements for appointment as
a guardian are numerous. The proposed guardian must take a training class. The ward (the person
who needs the guardianship) must be represented requiring the hiring of a separate attorney. There
is a hearing where testimony is heard by a judge to determine whether a guardianship is necessary.
These are only examples of the full requirements to obtain a guardianship. There is the additional
burden of maintaining the guardianship, such as filing reports to the court on an ongoing basis.
See Chapter 54 of the Wisconsin Statutes. This can all be avoided by the proper execution of a
НСРОА.
By way of an example, an elderly couple both needed skilled nursing care at a long-term care
facility at the same time. It was discovered that both of their HCPOA’s were defective because
they were not properly executed. Because of their health condition they both had to be admitted
right away. This required the family to obtain a temporary guardianship in order to get them into
the nursing home. That had to be followed up with a petition for permanent guardianship. As you
can imagine this was very costly and put a tremendous burden on the family. All of which could
easily have been avoided by a properly drafted and executed HCPOA.
The attorneys at Bakke Norman have the necessary experience and knowledge to assist you in the
drafting and execution of a HCPOA. Contact us today at www.bakkenorman.com.
For additional information on the HCPOA, please see “Wisconsin’s Power of Attorney for Health
Care”, Sweet. Wis. Law, September 1990, and “Planning Ahead for Incapacity”, Shapiro. Wis.
Law, August 1991.