If you have created a health care power of attorney, give yourself a pat on the back! You have taken an important step in the estate planning process. At some point, when you finish basking in the glory of your accomplishment, you may begin to wonder what would happen if the person you thoughtfully selected to be your health care agent is either no longer willing or able to fulfill their duties or worse, acts in a manner that is inconsistent with your best interests. In other words, what if your health care agent goes rogue?
First, let’s clarify some important terminology. In Wisconsin, the person who creates a health care power of attorney for themself is called the principal. The person the principal names in the power of attorney document to make health care decisions form them is called the agent.
Next, it is important to understand that your health care agent cannot be charged with a crime or held civilly liable for decisions they make your behalf in good faith, so long as the decision is consistent with your health care power of attorney document and it complies with applicable laws. This applies even if you or others don’t agree with the decision or the decision has negative results. Healthcare agents, like the rest of us, are allowed to make mistakes as long as they are acting in good faith when the make them.
So, what if your health care agent is failing to act in good faith, or is simply no longer willing or able to continue acting as your agent?
Revocation. If your health care agent goes rogue, you can revoke your power of attorney and create a new one with a new agent. You can revoke your healthcare power of attorney by doing any of the following things:
1. Canceling, defacing, obliterating, burning, tearing or otherwise destroying the power of attorney for health care document or directing someone else in your presence to do so.
2. Signing and dating a written statement expressing your intent to revoke the health care power of attorney.
3. Verbally expressing your intent to revoke the health care power of attorney in the presence of two witnesses.
4. Executing a subsequent health care power of attorney.
If your health care agent is also your spouse and your marriage ends through annulment or divorce, your health care power of attorney is automatically revoked. The same is true if your agent is your legal domestic partner and the domestic partnership is terminated.
Further, once your agent knows that your health care power of attorney has been revoked, they are required communicate that fact to your health care providers, but only the ones they are aware of having a copy of the power of attorney document. Upon receiving such notification, your health care provider is required to note your medical record with the time, date and place of the revocation. If they received notice of the revocation sometime after the the actual date of revocation, they are required to also note your medical record with the time, date and place they were notified.
Resignation. Agents appointed under health care powers of attorney are not legally bound to serve. They can resign at any time for any reason. If your agent resigns, your alternate agent, if you identified one in your power of attorney document, takes over and becomes your primary agent. If you did not appoint an alternate agent, you may need to create a new power of attorney with new agents, or someone may need to petition the court to have a guardian appointed for you, depending on the circumstances.
Court Supervision. If a court finds that your health care agent has not been performing in accordance with the terms of your health care power of attorney document, the court may do any of the following:
1. Direct your health care agent to act in accordance with the terms of your health care power of attorney.
2. Require your health care agent to report to the court concerning performance of his or her duties at specified periods of time.
3. Rescind your health care agent’s authority and revoke the power of attorney. If you have named an alternate health care agent in your health care power of attorney, your alternate agent may take over as your primary agent. Again, if you have not named an alternate agent you may need to create a new health care power of attorney, or you may have to go through a guardianship proceeding depending on the circumstances.
Penalties. In addition, there are several penalties that can be imposed on an individual who violates certain rules governing health care powers of attorney. Note that these penalties include anyone who violates these rules, not just your health care agent.
(1) Whoever directly or indirectly coerces, threatens or intimidates an individual so as to cause the individual to execute a power of attorney for health care instrument shall be fined not more than $500 or imprisoned for not more than 30 days or both.
(2) Whoever intentionally conceals, cancels, defaces, obliterates, damages or destroys a power of attorney for health care instrument without the consent of the principal for that instrument may be fined not more than $500 or imprisoned for not more than 30 days or both.
(3 )Whoever knowingly conceals, falsifies or forges a power of attorney for health care instrument with intent to create the false impression that a person other than the health care agent has been so designated shall be fined not more than $1,000 or imprisoned for not more than 9 months or both.
(4 )Whoever intentionally withholds actual knowledge of the revocation of a power of attorney for health care or of the falsification or forgery of a power of attorney for health care instrument shall be fined not more than $1,000 or imprisoned for not more than 9 months or both.
(5) Whoever acts or attempts to act as a health care agent based on a power of attorney for health care that the individual knows has been executed without the voluntary consent of the principal, that the individual knows has been forged or substantially altered without the authorization of the principal, or that the individual knows has been revoked, shall be fined not more than $1,000 or imprisoned for not more than 9 months or both.
Guardianship. As indicated above, sometimes, it is necessary to commence a guardianship proceeding when a health care agent goes rogue. Even if a guardian is appointed, the court may still keep all or portions of your health care power of attorney in place while limiting or removing your health care agent’s authority. If the health care power of attorney is not revoked or limited by the court, the guardian appointed for you cannot make health care decisions for you that your health care agent could make unless the guardian serves a dual role and is also your health care agent.
Final Thought. Undoubtedly, when you set up your health care power of attorney, you chose an agent who you trusted to act in good faith and who you believed would be there for you during difficult times when you need them the most. Unfortunately, nothing in life or estate planning can be one-hundred percent absolutely certain, although we estate planning attorneys sometimes like to think we can come close. The good news is that there are options and protections available to help get things back on track so you receive the support you need in the event your health care agent goes rogue.
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.