In Wisconsin, there are only two possible individuals who can step into the shoes of another person and make decisions about their health and healthcare:
- a healthcare agent (chosen by you under a valid power of attorney document) or;
- a court-appointed guardian
It is a common misunderstanding that a spouse or a family member can make healthcare decisions for their loved one. This is not true. If you do not have a valid power of attorney document so another person can act on your behalf when needed, your loved ones will need to go through the court process of having a guardian appointed to act.
Acting as a healthcare agent for a loved one is an honor that comes with responsibilities. In this article, we look at the role of an agent who is legally authorized to act under a valid power of attorney document.
When does the agent start acting?
Usually, the agent will start acting after two physicians determine that the person is incapacitated.
Under Wisconsin law, “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 healthcare decisions. It is not enough for there to be “mere old age, eccentricity or physical disability” under the law.
Check the healthcare power of attorney document to know for certain at what point an agent can act on your behalf.
What can the agent do when acting?
People generally think about a healthcare agent being necessary during an end-of-life stage. However, agents are needed in other situations as well, such as during a chronic illness.
The power of attorney document will provide details about what an agent can do. Generally, they can make “healthcare” decisions which include “any care, treatment, service or procedure to maintain, diagnose or treat an individual’s physical or mental condition.” Specifically, an agent may select the medical professional or facility. The agent also will likely have the power to decide on surgery, medication, or treatment like dialysis and chemotherapy.
The agent must always make decisions according to the wishes of the person needing the care. This can be very difficult for an agent who may have different wishes than the person for whom they are acting. It is the agent’s duty to act in good faith with the desires of that person who has placed their trust in them to carry out their wishes. It is very important to have clear conversations about the type of choices and wishes for healthcare with the agent you have selected.
When does the agent stop acting?
A healthcare agent no longer has authority to act when:
- The person the agent is acting for dies.
- The agent is no longer willing or able to act as agent, which may be due to their own death, illness, disability or any other reason. It is important to have an alternate agent identified in the power of attorney document.
- A court decides to remove the authority of an agent to act.
- The person the agent is acting for revokes the agent’s power. An agent who is acting has authority to continue acting until being notified of the revocation. This can be done in writing, verbally, or by the destruction of the power of attorney document.
Most people prefer to have an agent of their choosing to make healthcare decisions for them vs. a court-appointed guardian. Take the time to get a valid power of attorney document in place as part of an overall estate plan. Discuss healthcare wishes in advance, so the agent can be the best advocate possible.
Published in Journey of Aging, Fall 2015
Reviewed August 17, 2023
