2013 - 2014 LEGISLATURE
March 11, 2014 - Introduced by Representatives Berceau, C. Taylor, Johnson,
Pope, Ringhand, Sargent, Sinicki and Zamarripa, cosponsored by Senators
Shilling, Erpenbach, Harris, Risser and L. Taylor. Referred to Committee
on Health.
AB861,1,3 1An Act to repeal 154.19 (1) (e) and 154.19 (3) (b) 3.; and to amend 154.03 (2),
2154.07 (2), 155.20 (6) and 155.30 (3) of the statutes; relating to: effect of
3advance directives and powers of attorney for health care during pregnancy.
Analysis by the Legislative Reference Bureau
Current law allows an individual to execute a declaration to physicians that
specifies whether that individual chooses to withhold or withdraw life-sustaining
procedures or feeding tubes if that individual has a terminal condition or is in a
vegetative state. The Wisconsin form to be prepared by the Department of Health
Services specifies that the individual, if he or she has a terminal condition, does not
want his or her dying to be artificially prolonged and does not want life-sustaining
procedures to be used. Under current law the physician must follow the wishes in
the declaration unless the physician believes that withholding or withdrawing
life-sustaining procedures or feeding tubes would cause the patient pain or reduced
comfort and that the pain or discomfort cannot be alleviated through pain relief
measures. Under current law, the declaration to physicians has no effect during the
pregnancy of a woman the physician knows to be pregnant. This bill eliminates the
prohibition on giving effect to the declaration during a woman's pregnancy.
Under current law, a physician may issue a do-not-resuscitate order if all of the
following apply: the patient has attained age 18 and has a terminal condition; the
patient has a medical condition in which resuscitation would be unsuccessful in
restoring cardiac or respiratory function or the patient would experience repeated
cardiac or pulmonary failure within a short period before death; the patient or the

patient's guardian or health care agent requests, consents to, and signs the order; the
order is in writing; and the physician does not know the patient to be pregnant.
Current law requires emergency medical technicians, first responders, and
emergency health care facility personnel to follow a do-not-resuscitate order except
if the do-not-resuscitate order is revoked, if the patient's do-not-resuscitate
bracelet appears to have been tampered with or removed, or if the emergency
personnel know the patient to be pregnant. The bill removes the restriction on
obtaining a do-not-resuscitate order when the patient is pregnant. The bill also
removes the prohibition on following do-not-resuscitate orders when the patient is
pregnant.
Under current law, an individual may execute a power of attorney for health
care, which allows the designation of a health care agent to make health care
decisions on behalf of the individual while the individual is incapacitated. Current
law and the Wisconsin form for the power of attorney for health care allow the
individual who is executing the power of attorney for health care to specify certain
decisions that the agent may make. Specifically, the individual may designate by
checking "yes" or "no" whether the agent may make health care decisions when the
individual is pregnant. If the individual does not check either "yes" or "no" on the
form, the form specifies that the agent may not make health care decisions when the
individual is pregnant. The bill changes the default so that if an individual does not
check either "yes" or "no" on the form, the agent may make health care decisions
when the individual is pregnant.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB861,1 1Section 1. 154.03 (2) of the statutes is amended to read:
AB861,3,82 154.03 (2) The department shall prepare and provide copies of the declaration
3and accompanying information for distribution in quantities to health care
4professionals, hospitals, nursing homes, county clerks and local bar associations and
5individually to private persons. The department shall include, in information
6accompanying the declaration, at least the statutory definitions of terms used in the
7declaration, statutory restrictions on who may be witnesses to a valid declaration,
8a statement explaining that valid witnesses acting in good faith are statutorily
9immune from civil or criminal liability, an instruction to potential declarants to read

1and understand the information before completing the declaration and a statement
2explaining that an instrument may, but need not be, filed with the register in probate
3of the declarant's county of residence. The department may charge a reasonable fee
4for the cost of preparation and distribution. The declaration distributed by the
5department of health services shall be easy to read, the type size may be no smaller
6than 10 point, and the declaration shall be in the following form, setting forth on the
7first page the wording before the ATTENTION statement and setting forth on the
82nd page the ATTENTION statement and remaining wording:
AB861,3,9 9Declaration to physicians
AB861,3,1010 (WISCONSIN LIVING WILL)
AB861,3,1611 I,...., being of sound mind, voluntarily state my desire that my dying not be
12prolonged under the circumstances specified in this document. Under those
13circumstances, I direct that I be permitted to die naturally. If I am unable to give
14directions regarding the use of life-sustaining procedures or feeding tubes, I intend
15that my family and physician honor this document as the final expression of my legal
16right to refuse medical or surgical treatment.
AB861,3,2017 1. If I have a TERMINAL CONDITION, as determined by 2 physicians who
18have personally examined me, I do not want my dying to be artificially prolonged and
19I do not want life-sustaining procedures to be used. In addition, the following are
20my directions regarding the use of feeding tubes:
AB861,3,2121 .... YES, I want feeding tubes used if I have a terminal condition.
AB861,3,2222 .... NO, I do not want feeding tubes used if I have a terminal condition.
AB861,3,2323 If you have not checked either box, feeding tubes will be used.
AB861,4,3
12. If I am in a PERSISTENT VEGETATIVE STATE, as determined by 2
2physicians who have personally examined me, the following are my directions
3regarding the use of life-sustaining procedures:
AB861,4,54 .... YES, I want life-sustaining procedures used if I am in a persistent
5vegetative state.
AB861,4,76 .... NO, I do not want life-sustaining procedures used if I am in a persistent
7vegetative state.
AB861,4,88 If you have not checked either box, life-sustaining procedures will be used.
AB861,4,119 3. If I am in a PERSISTENT VEGETATIVE STATE, as determined by 2
10physicians who have personally examined me, the following are my directions
11regarding the use of feeding tubes:
AB861,4,1212 .... YES, I want feeding tubes used if I am in a persistent vegetative state.
AB861,4,1313 .... NO, I do not want feeding tubes used if I am in a persistent vegetative state.
AB861,4,1414 If you have not checked either box, feeding tubes will be used.
AB861,4,1715 If you are interested in more information about the significant terms used in
16this document, see section 154.01 of the Wisconsin Statutes or the information
17accompanying this document.
AB861,4,1918 ATTENTION: You and the 2 witnesses must sign the document at the same
19time.
AB861,4,2020 Signed ....   Date ....
AB861,4,2121 Address ....   Date of birth ....
AB861,4,2522 I believe that the person signing this document is of sound mind. I am an adult
23and am not related to the person signing this document by blood, marriage or
24adoption. I am not entitled to and do not have a claim on any portion of the person's
25estate and am not otherwise restricted by law from being a witness.
AB861,5,1
1Witness signature ....   Date signed ....
AB861,5,22 Print name ....
AB861,5,33 Witness signature ....   Date signed ....
AB861,5,44 Print name ....
AB861,5,65 DIRECTIVES TO
6 ATTENDING PHYSICIAN
AB861,5,107 1. This document authorizes the withholding or withdrawal of life-sustaining
8procedures or of feeding tubes when 2 physicians, one of whom is the attending
9physician, have personally examined and certified in writing that the patient has a
10terminal condition or is in a persistent vegetative state.
AB861,5,1611 2. The choices in this document were made by a competent adult. Under the
12law, the patient's stated desires must be followed unless you believe that withholding
13or withdrawing life-sustaining procedures or feeding tubes would cause the patient
14pain or reduced comfort and that the pain or discomfort cannot be alleviated through
15pain relief measures. If the patient's stated desires are that life-sustaining
16procedures or feeding tubes be used, this directive must be followed.
AB861,5,1917 3. If you feel that you cannot comply with this document, you must make a good
18faith attempt to transfer the patient to another physician who will comply. Refusal
19or failure to make a good faith attempt to do so constitutes unprofessional conduct.
AB861,5,21 20 4. If you know that the patient is pregnant, this document has no effect during
21her pregnancy.
AB861,5,2222 * * * * *
AB861,5,2523 The person making this living will may use the following space to record the
24names of those individuals and health care providers to whom he or she has given
25copies of this document:
AB861,6,1
1.................................................................
AB861,6,22 .................................................................
AB861,6,33 .................................................................
AB861,2 4Section 2. 154.07 (2) of the statutes is amended to read:
AB861,6,135 154.07 (2) Effect of declaration. The desires of a qualified patient who is
6competent supersede the effect of the declaration at all times. If a qualified patient
7is adjudicated incompetent at the time of the decision to withhold or withdraw
8life-sustaining procedures or feeding tubes, a declaration executed under this
9subchapter is presumed to be valid. The declaration of a qualified patient who is
10diagnosed as pregnant by the attending physician has no effect during the course of
11the qualified patient's pregnancy.
For the purposes of this subchapter, a physician
12or inpatient health care facility may presume in the absence of actual notice to the
13contrary that a person who executed a declaration was of sound mind at the time.
AB861,3 14Section 3. 154.19 (1) (e) of the statutes is repealed.
AB861,4 15Section 4. 154.19 (3) (b) 3. of the statutes is repealed.
AB861,5 16Section 5. 155.20 (6) of the statutes is amended to read:
AB861,6,2017 155.20 (6) If the principal is known to be pregnant, the health care agent may
18make a health care decision on behalf of the principal that the power of attorney for
19health care instrument authorizes, unless the power of attorney for health care
20instrument specifies otherwise
.
AB861,6 21Section 6. 155.30 (3) of the statutes is amended to read:
AB861,7,922 155.30 (3) The department shall prepare and provide copies of a power of
23attorney for health care instrument and accompanying information for distribution
24in quantities to health care professionals, hospitals, nursing homes, multipurpose
25senior centers, county clerks, and local bar associations and individually to private

1persons. The department shall include, in information accompanying the copy of the
2instrument, at least the statutory definitions of terms used in the instrument,
3statutory restrictions on who may be witnesses to a valid instrument, a statement
4explaining that valid witnesses acting in good faith are statutorily immune from civil
5or criminal liability and a statement explaining that an instrument may, but need
6not, be filed with the register in probate of the principal's county of residence. The
7department may charge a reasonable fee for the cost of preparation and distribution.
8The power of attorney for health care instrument distributed by the department
9shall include the notice specified in sub. (1) and shall be in the following form:
AB861,7,1110 POWER OF ATTORNEY
11 FOR HEALTH CARE
AB861,7,1212 Document made this.... day of.... (month),.... (year).
AB861,7,1413 CREATION OF POWER OF ATTORNEY
14 FOR HEALTH CARE
AB861,7,2215 I,.... (print name, address and date of birth), being of sound mind, intend by this
16document to create a power of attorney for health care. My executing this power of
17attorney for health care is voluntary. Despite the creation of this power of attorney
18for health care, I expect to be fully informed about and allowed to participate in any
19health care decision for me, to the extent that I am able. For the purposes of this
20document, "health care decision" means an informed decision to accept, maintain,
21discontinue or refuse any care, treatment, service or procedure to maintain, diagnose
22or treat my physical or mental condition.
AB861,7,2423 In addition, I may, by this document, specify my wishes with respect to making
24an anatomical gift upon my death.
AB861,8,2
1DESIGNATION OF
2 HEALTH CARE AGENT
AB861,8,173 If I am no longer able to make health care decisions for myself, due to my
4incapacity, I hereby designate.... (print name, address and telephone number) to be
5my health care agent for the purpose of making health care decisions on my behalf.
6If he or she is ever unable or unwilling to do so, I hereby designate.... (print name,
7address and telephone number) to be my alternate health care agent for the purpose
8of making health care decisions on my behalf. Neither my health care agent nor my
9alternate health care agent whom I have designated is my health care provider, an
10employee of my health care provider, an employee of a health care facility in which
11I am a patient or a spouse of any of those persons, unless he or she is also my relative.
12For purposes of this document, "incapacity" exists if 2 physicians or a physician and
13a psychologist who have personally examined me sign a statement that specifically
14expresses their opinion that I have a condition that means that I am unable to receive
15and evaluate information effectively or to communicate decisions to such an extent
16that I lack the capacity to manage my health care decisions. A copy of that statement
17must be attached to this document.
AB861,8,1918 GENERAL STATEMENT
19 OF AUTHORITY GRANTED
AB861,9,220 Unless I have specified otherwise in this document, if I ever have incapacity I
21instruct my health care provider to obtain the health care decision of my health care
22agent, if I need treatment, for all of my health care and treatment. I have discussed
23my desires thoroughly with my health care agent and believe that he or she
24understands my philosophy regarding the health care decisions I would make if I

1were able. I desire that my wishes be carried out through the authority given to my
2health care agent under this document.
AB861,9,113 If I am unable, due to my incapacity, to make a health care decision, my health
4care agent is instructed to make the health care decision for me, but my health care
5agent should try to discuss with me any specific proposed health care if I am able to
6communicate in any manner, including by blinking my eyes. If this communication
7cannot be made, my health care agent shall base his or her decision on any health
8care choices that I have expressed prior to the time of the decision. If I have not
9expressed a health care choice about the health care in question and communication
10cannot be made, my health care agent shall base his or her health care decision on
11what he or she believes to be in my best interest.
AB861,9,1312 LIMITATIONS ON
13 MENTAL HEALTH TREATMENT
AB861,9,1914 My health care agent may not admit or commit me on an inpatient basis to an
15institution for mental diseases, an intermediate care facility for persons with an
16intellectual disability, a state treatment facility or a treatment facility. My health
17care agent may not consent to experimental mental health research or
18psychosurgery, electroconvulsive treatment or drastic mental health treatment
19procedures for me.
AB861,9,2220 ADMISSION TO NURSING HOMES OR
21 COMMUNITY-BASED
22 RESIDENTIAL FACILITIES
AB861,9,2423 My health care agent may admit me to a nursing home or community-based
24residential facility for short-term stays for recuperative care or respite care.
AB861,10,3
1If I have checked "Yes" to the following, my health care agent may admit me for
2a purpose other than recuperative care or respite care, but if I have checked "No" to
3the following, my health care agent may not so admit me:
AB861,10,44 1. A nursing home — Yes.... No....
AB861,10,55 2. A community-based residential facility — Yes.... No....
AB861,10,76 If I have not checked either "Yes" or "No" immediately above, my health care
7agent may admit me only for short-term stays for recuperative care or respite care.
AB861,10,88 PROVISION OF A FEEDING TUBE
AB861,10,139 If I have checked "Yes" to the following, my health care agent may have a
10feeding tube withheld or withdrawn from me, unless my physician has advised that,
11in his or her professional judgment, this will cause me pain or will reduce my comfort.
12If I have checked "No" to the following, my health care agent may not have a feeding
13tube withheld or withdrawn from me.
AB861,10,1614 My health care agent may not have orally ingested nutrition or hydration
15withheld or withdrawn from me unless provision of the nutrition or hydration is
16medically contraindicated.
AB861,10,1717 Withhold or withdraw a feeding tube — Yes.... No....
AB861,10,1918 If I have not checked either "Yes" or "No" immediately above, my health care
19agent may not have a feeding tube withdrawn from me.
AB861,10,2120 HEALTH CARE DECISIONS FOR
21 PREGNANT WOMEN
AB861,10,2522 If I have checked "Yes" to the following, my health care agent may make health
23care decisions for me even if my agent knows I am pregnant. If I have checked "No"
24to the following, my health care agent may not make health care decisions for me if
25my health care agent knows I am pregnant.
AB861,11,1
1Health care decision if I am pregnant — Yes.... No....
AB861,11,42 If I have not checked either "Yes" or "No" immediately above, my health care
3agent may not make health care decisions for me if my health care agent knows I am
4pregnant.
AB861,11,65 STATEMENT OF DESIRES, SPECIAL
6 PROVISIONS OR LIMITATIONS
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