The Power Of A Healthcare Power Of Attorney

In Wisconsin, a healthcare power of attorney is a powerfully efficient and cost effective way to make sure a close friend or loved one will be able to make health care decisions for you if you are ever incapacitated.

Wisconsin is not a next of kin state.

People are often surprised to learn that spouses and other immediate family members in Wisconsin do not automatically have the right to make health care decisions for each other.  For example, Wisconsin law does not automatically allow you to step in if your loved one is severely injured and is unable to understand or communicate information about his or her healthcare.

Instead, Wisconsin relies on a general rule of self-determination.  Under this rule, both competent and incompetent individuals retain the right to make decisions about their medical treatment, even end of life treatment.  The rule emanates in part  from  common law, in part from the Wisconsin state constitution, and in part from the U.S. constitution.  

As far back as 1891, the United States Supreme Court stated, “[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”

However, as the Wisconsin Supreme Court has pointed out,  “often such rights are only meaningful as they are exercised by agents acting with the best interests of their principals in mind.”  Thus, right of self-determination may not mean much to your injured loved one if he or she simply does not understand the nature of his or her injuries or cannot communicate.

So what can be done to help a loved on who is incapacitated make meaningful healthcare decisions?

One option is to petition the court to appoint a guardian who is empowered make healthcare decisions for your loved one that are in his or her best interests.  The downside of guardianship proceedings is that they can be time-consuming, stressful, and expensive.  A guardianship case can take up to 90 days and involve multiple court appearances.  The court often appoints a attorney, called a guardian ad litem, whose duty it is investigate and make a recommendation to the court as what would be in your loved one’s best interests.  If the guardianship is contested, it may require involvement of legal counsel for both you and your loved one.  If a guardian is appointed, the cost of the guardianship proceedings are paid out of your loved one’s assets. 

A more efficient option is for your loved one to authorize someone to make healthcare decisions for them ahead of time in case he or she becomes incapacitated.  In Wisconsin, this can be accomplished through a health care power of attorney.  A health care power of attorney is a document in which your loved one (the principal) designates someone else (the agent) to make health care decisions on his or her behalf if he or she ever becomes incapacitated. Health care powers of attorney can be created quickly and at a fraction of the cost of a guardianship proceeding.  In doing so, your family avoids the time, stress, and expense of going through guardianship proceedings in the event a loved one ever becomes incapacitated and cannot make meaningful healthcare decisions.   Therein lies the power of a power of attorney for healthcare. 

James F. Guckenberg is an attorney with Halling & Cayo S.C. in Milwaukee, Wisconsin. He focuses his practice on estate planning, probate, and guardianships. Posts here are his own, do not offer legal advice or create an attorney-client relationship, and do not necessarily reflect the views of Halling & Cayo S.C.

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