What are advance directives?
Advance directives are documents in which you state your wishes concerning your health care in case you are unable to speak for yourself in the future. Advance directives give instructions about medical treatments and procedures that you do and do not want to receive and may name a proxy (an agent) to make decisions for you if you are ever incapacitated. You may complete these documents yourself. They do not need to be drafted by a lawyer, but they must be signed before witnesses. In some states, advance directives must also be notarized or reviewed by a lawyer to be valid.
The Wisconsin Legislature has created statutory forms for durable powers of attorney for health care (in ch. 155, Wis. Stats.) and living wills ("Declarations to Physicians" in ch. 154, Wis. Stats.), both of which require that the "principal" (the person creating the document) must sign the documents in the presence of two disinterested witnesses.
Advance directives greatly enhance the probability that your wishes regarding your medical treatment will be followed if you are ever unable to speak for yourself.
Why should I have a Power of Attorney for Health Care?
Many people assume that their family members will be able to make health care decisions for them if they ever become incapacitated and can’t speak for themselves. However, in Wisconsin, a family member is not automatically authorized to make health care decision for you. You must complete a Power of Attorney for Health Care and name a family member as your agent. Without a Power of Attorney for Health Care, it will be necessary for a family member (or another interested person) to ask the court to appoint a guardian of the person for you. This process can be costly, time-consuming, cumbersome and emotionally draining. It may not result in the appointment of the person you would have chosen to be your guardian. Also, the person chosen to be your guardian may not know your wishes.
In addition, in the absence of a Power of Attorney for Health Care, it will be necessary for your court-appointed guardian to seek a “protective placement order” from the court in order for you to be placed in a nursing home or assisted living facility (that is, a community-based residential facility or “CBRF”) for long-term care. This is true even if you enter a nursing home or a CBRF when you were still capable of consenting to the admission yourself and then later become unable to make your own health care decisions if you have not signed a Power of Attorney for Health Care that authorizes your agent to approve of continued placement in the nursing home or CBRF for long-term care and medical treatment.
Another consideration is that under Wisconsin case law, only an agent authorized to do so under a valid Power of Attorney for Health Care may direct that a feeding tube be withheld or withdrawn in situations where the incapacitated person is not in a persistent vegetative state. The vast majority of incapacitated people, including those who are near death, are not in a persistent vegetative state. Wisconsin courts have ruled that in the absence of a Power of Attorney for Health Care that gives this authority to a health care agent, a court-appointed guardian of the person may only have a feeding tube withheld or withdraw if the patient is in a persistent vegetative state. (However, this interpretation of Wisconsin law is being challenged at the present time by the family of a La Crosse woman who did not have a Power of Attorney for Health Care and is being kept alive by continuous sedation and a feeding tube contrary to the family’s wishes.) You can spare your family from having to deal with these emotionally draining issues by designating a health care agent in a Power of Attorney for Health Care after making sure that the designated person is aware of the medical treatment that you want and do not want and is willing to honor your wishes.
There's nothing wrong with me. Do I need an advance directive?
Everyone should have an advance directive for health care to record their wishes. It is the best way to avoid any confusion or argument about medical care that you would want or not want. In Wisconsin, a durable power of attorney for health care applies to a broader range of situations than a living will (that is, a Declaration to Physicians), and therefore a power of attorney for health care is usually the best form of advance directive for someone who lives in Wisconsin.
Even if you are not sick at the present time, you could incur an injury in an accident that leaves you unable to make decisions about your care. Advance directives do not only assist medical professionals. They can help relieve family and friends of the burden of making decisions without the benefit of your input.
Where can I obtain the appropriate advance directive form?
When a new member in Wisconsin joins Compassion & Choices, we supply the Wisconsin statutory living will (declaration to physician) and statutory durable power of attorney forms in our New Member Packet.
Any Wisconsin resident may also obtain free copies of the living will and durable power of attorney for health care forms from the Wisconsin Department of Health and Family Services. These advance directive forms may also be downloaded from the Wisconsin Department of Health and Family Services web site: http://dhfs.wisconsin.gov/forms/AdvDirectives/
You can also find helpful information on the Advance Directives Publication page at the web site of the Coalition of Wisconsin Aging Groups (CWAG): www.cwag.org/legal/guardian-support/?ID=64 This CWAG site includes information about durable powers of attorney for finances as well as durable powers of attorneys for health care and living wills.
How do I let people know that I have an advance directive?
The best way is to tell them! Your family, friends, and your agent under a power of attorney for health care need to know that you have an advance directive and where to find to it. It is also a good idea to give your agent and your doctor a copy of your advance directive, so that it can be found readily in an emergency.
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