Authors: Attys John C. Mitby & Thomas S. Vercauteren & Law Clerk Elizabeth Spencer
Phone: 608-575-4077 & 608-257-0945
Email: jmitby@hbslawfirm.com  or  tvercauteren@hbslawfirm.com

An estimated 80 percent of Wisconsin residents, including 50 percent of those with severe or terminal illnesses, do not have advance directives indicating preferences for end-of-life decisions.[1] Documenting your desires by completing simple forms will help ease the burden of decision-making by your loved ones in the event that you lose the ability to make decisions for yourself.

Advance Directives

Wisconsin statutes provide for two forms of advance directives that may be further individualized: the Power of Attorney for Health Care (POA) and the Declaration to Physicians (Living Will). Both of these forms guide medical professionals in respecting your wishes, relieve relatives from guessing, and help prevent the need for court supervised guardianships and protective placement.

The Power of Attorney for Health Care allows you to appoint an agent of your choosing to make all healthcare decisions in collaboration with medical professionals if you become incapacitated. This power involves all treatments, not just those that are life sustaining. The POA form available from the Wisconsin State Bar allows you to indicate what issues your agent can make decisions on including nursing home or community based facility placement, usage of feeding tubes, decisions if you are pregnant, any special provisions, and decisions for anatomical gifts. Additionally, there is an optional addendum for specific wishes relating to terminal conditions, persistent vegetative state and advanced dementia.

A POA requires the selection of an agent to make decisions on your behalf. The agent can be almost any legal adult, so long as it is not your health care provider, a healthcare facility employee who is not a relative, or the spouse of these parties. Under the Wisconsin statutes, the agent only acts once either 2 physicians or 1 physician and a psychologist declare that you no longer have capacity. The agent must also be specifically appointed as a POA for Health Care agent. If you have already selected a POA for durable/financial reasons they are not authorized to make health care decisions.

The Living Will is a form that, unlike a POA, allows you to state your desires for specific situations and directly authorizes physicians. No agent is needed to make decisions on your behalf. The form allows you to designate directions for three situations: (1) for the use of feeding tubes when you have a terminal condition with no desire for life sustaining treatment; (2) to indicate whether you want life sustaining procedures when in a persistent vegetative state; (3) to express whether you want feeding tubes while in a persistent vegetative state

CPR and Do Not Resuscitate (DNR) Orders

CPR, while life saving, it is not always effective, even when performed correctly. Addendums can be made to POA’s to indicate your desire for or against CPR in certain circumstances. If you find yourself in an institutional setting, a physician must complete an order to notify all other care provides that CPR is not to be performed.

If you are outside of an institutional setting, an emergency medical team will try to revive you unless you have a Do Not Resuscitate bracelet. In 1996, the Wisconsin legislature passed 1995 Wisconsin Act 200 allowing certain individuals to request DNR bracelets. The bracelet is only legal if issued by a physician. It is only available to those over 18, not pregnant and have either: (1) a terminal condition, a condition that makes CPR likely to be unsuccessful; or, (2) a condition that makes CPR more harmful than beneficial.

Organ and Tissue Donation

Wishes for anatomical gifts can be indicated in a POA or by indicating so on your driver’s license. Anatomical donations come at no cost your surviving family and are completed shortly after death preventing any delay in funeral arrangements.

You can also elect to donate your body for medical research. This may also be designated in either your driver’s license or POA. However, if this appeals to you, you should contact the research institution in advance as they may require specific documentation prior to death and there may be associated fees.

Conclusion

Completing advance directives will provide peace of mind to both you and your loved ones. The State Bar of Wisconsin provides a packet, available in PDF form that includes the basic forms for both Power of Attorney and Living Wills. These forms meet the basic requirements for advance directives in Wisconsin. The forms can often be tailored to meet your specific needs with the assistance of an attorney.

Wisconsin specific forms for Healthcare Power of Attorney, Living Wills and Organ Donation is available in a helpful publication from the State Bar of Wisconsin.

Additional information may also be found at the American Bar Association Toolkit for Health Care Advance Planning.

[1] http://www.wisbar.org/NewsPublications/InsideTrack/Pages/Article.aspx?Volume=8&Issue=7&ArticleID=24735