SB312: Bill Text

LRB-1916/1

TAY:mfd:lp

1997 - 1998 LEGISLATURE

1997 Senate BILL 312

October 1, 1997 - Introduced by Senators Plache and Roessler, cosponsored by Representatives La Fave, Musser, Sykora, Lazich, L. Young and Morris-Tatum. Referred to Committee on Judiciary, Campaign Finance Reform and Consumer Affairs.

SB312,1,6 An Act to renumber and amend 252.15 (2) (b) 1. and 252.15 (5) (a) 1.; to amend 55.05 (5) (d), 146.81 (5), chapter 155 (title), 252.15 (2) (b) (intro.), 252.15 (2) (b) 3. a., 252.15 (2) (b) 3. b., 252.15 (3), 252.15 (5) (a) (intro.), 632.67, 632.775 (2) and 880.33 (3); and to create 155.01 (7m), 155.01 (13), 155.90, 252.15 (2) (b) 1. b. and 252.15 (5) (a) 1. b. of the statutes; relating to: permitting certain persons to make health care decisions for incapacitated persons.

Analysis by the Legislative Reference Bureau

Under current law, a person who is of sound mind and has attained the age of 18 (principal) may execute a power of attorney for health care instrument to designate another person (health care agent) to make certain health care decisions on behalf of the principal in the event that the principal becomes incapacitated and cannot make health care decisions on his or her own behalf.

This bill authorizes the following persons in the following order of priority, with certain exceptions, to make most health care decisions on behalf of an incapacitated person who has not executed a power of attorney for health care instrument:

1. The spouse of the incapacitated person.

2. An adult child of the incapacitated person.

3. A parent of the incapacitated person.

4. An adult sibling of the incapacitated person.

5. A grandparent of the incapacitated person.

6. An adult grandchild of the incapacitated person.

7. An adult close friend of the incapacitated person.

For further information see the state and local 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:

SB312, s. 1 Section 1. 55.05 (5) (d) of the statutes is amended to read:

SB312,2,7 55.05 (5) (d) The admission to a facility of a principal by a health care agent under the terms of a power of attorney for health care instrument and in accordance with ch. 155, or of an incapacitated individual by a surrogate under s. 155.90, or the admission of an individual to a nursing home or community-based residential facility under the requirements of s. 50.06 is not a protective placement under this chapter.

SB312, s. 2 Section 2. 146.81 (5) of the statutes is amended to read:

SB312,3,4 146.81 (5) "Person authorized by the patient" means the parent, guardian or legal custodian of a minor patient, as defined in s. 48.02 (8) and (11), the person vested with supervision of the child under s. 938.183 or 938.34 (4d), (4h), (4m) or (4n), the guardian of a patient adjudged incompetent, as defined in s. 880.01 (3) and (4), the personal representative or spouse of a deceased patient, any person authorized in writing by the patient or a health care agent designated by the patient as a principal under ch. 155 if the patient has been found to be incapacitated under s. 155.05 (2), except as limited by the power of attorney for health care instrument, or, if the patient has not executed a power of attorney for health care instrument under ch. 155, and the patient has been found to be incapacitated under s. 155.90 (3), the surrogate under s. 155.90 (2). If no spouse survives a deceased patient, "person authorized by the patient" also means an adult member of the deceased patient's immediate family, as defined in s. 632.895 (1) (d). A court may appoint a temporary guardian for a patient believed incompetent to consent to the release of records under this section as the person authorized by the patient to decide upon the release of records, if no guardian has been appointed for the patient.

SB312, s. 3 Section 3. Chapter 155 (title) of the statutes is amended to read:

SB312,3,6 Chapter 155

SB312,3,9 Power of attorney for health care and health care decisions by other persons

SB312, s. 4 Section 4. 155.01 (7m) of the statutes is created to read:

SB312,3,14 155.01 (7m) "Incapacitated" means unable 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 health care decisions, including decisions about his or her post-hospital care.

SB312, s. 5 Section 5. 155.01 (13) of the statutes is created to read:

SB312,3,18 155.01 (13) "Surrogate" means an individual authorized under s. 155.90 (2) to make health care decisions on behalf of another who cannot make health care decisions because of incapacity.

SB312, s. 6 Section 6. 155.90 of the statutes is created to read:

SB312,3,24 155.90 Health care decisions for incapacitated persons without a power of attorney for health care. (1) An individual under sub. (2) may make health care decisions on behalf of an incapacitated individual who does not have a valid power of attorney for health care and who has not been adjudicated incompetent under ch. 880, if all of the following apply:

SB312,4,3 (a) No individual who is listed under sub. (2) in the same order of priority as, or higher in priority than, the individual who is making the health care decision disagrees with the decision.

SB312,4,6 (b) 1. Except as provided in subd. 2., no individual who is listed under sub. (2) and who resides with the incapacitated individual disagrees with the health care decision.

SB312,4,7 2. Subdivision 1. does not apply if any of the following applies:

SB312,4,9 a. The individual who is making the health care decision resides with the incapacitated individual.

SB312,4,11 b. The individual who is making the health care decision is the spouse of the incapacitated individual.

SB312,4,14 (c) The individual on whose behalf the health care decision is being made is not diagnosed as developmentally disabled or as having a mental illness at the time of the health care decision.

SB312,4,16 (2) The following individuals, in the following order of priority, may make a health care decision on behalf of an incapacitated individual:

SB312,4,17 (a) The spouse of the incapacitated individual.

SB312,4,18 (b) An adult child of the incapacitated individual.

SB312,4,19 (c) A parent of the incapacitated individual.

SB312,4,20 (d) An adult sibling of the incapacitated individual.

SB312,4,21 (e) A grandparent of the incapacitated individual.

SB312,4,22 (f) An adult grandchild of the incapacitated individual.

SB312,4,23 (g) An adult close friend of the incapacitated individual.

SB312,5,8 (3) A determination that an individual is incapacitated for purposes of sub. (1) shall be made by 2 physicians, as defined in s. 448.01 (5), or by one physician and one licensed psychologist, as defined in s. 455.01 (4), who personally examine the individual and sign a statement specifying that the individual is incapacitated. Mere old age, eccentricity or physical disability, either singly or together, are insufficient to make a finding that an individual is incapacitated. Neither of the individuals who makes a finding that an individual is incapacitated may be a relative, as defined in s. 242.01 (11), of the individual or have knowledge that he or she is entitled to or has a claim on any portion of the individual's estate. A copy of the statement shall be included in the individual's records in the facility to which he or she is admitted.

SB312,5,12 (4) Except as specified in subs. (5) (a) and (b), (6) and (7), the surrogate who is known to the health care provider to be available to make health care decisions for the incapacitated individual has priority over any individual other than the incapacitated individual to make these health care decisions.

SB312,5,14 (5) (a) A surrogate may not consent to admission of the incapacitated individual on an inpatient basis to any of the following:

SB312,5,15 1. An institution for mental diseases, as defined in s. 49.43 (6m).

SB312,5,17 2. An intermediate care facility for the mentally retarded, as defined in s. 46.278 (1m) (am).

SB312,5,18 3. A state treatment facility, as defined in s. 51.01 (15).

SB312,5,19 4. A treatment facility, as defined in s. 51.01 (19).

SB312,5,22 (b) An incapacitated individual may be admitted or committed on an inpatient basis to a facility specified in par. (a) 1. to 4. only under the applicable requirements of ch. 51 or 55.

SB312,5,23 (c) 1. In this paragraph:

SB312,5,25 a. "Community-based residential facility" has the meaning given in s. 50.01 (1g).

SB312,6,1 b. "Nursing home" has the meaning given in s. 50.01 (3).

SB312,6,3 2. A surrogate may consent to the admission of an incapacitated individual to the following facilities, under the following conditions:

SB312,6,6 a. To a nursing home, for recuperative care for a period not to exceed 3 months, if the incapacitated individual is admitted directly from a hospital inpatient unit, unless the hospital admission was for psychiatric care.

SB312,6,10 b. If the incapacitated individual lives with the surrogate, to a nursing home or a community-based residential facility, as a temporary placement not to exceed 30 days, in order to provide the surrogate with a vacation or to release temporarily the surrogate for a family emergency.

SB312,6,14 c. To a nursing home or a community-based residential facility, for purposes other than those specified in subd. 2. a. and b., if the incapacitated individual is not diagnosed as developmentally disabled or as having a mental illness at the time of the proposed admission.

SB312,6,17 (6) A surrogate may not consent to experimental mental health research or to psychosurgery, electroconvulsive treatment or drastic mental health treatment procedures for the incapacitated individual.

SB312,6,24 (7) A surrogate may consent to the withholding or withdrawal of a feeding tube for the incapacitated individual, unless the principal's attending physician advises that, in his or her professional judgment, the withholding or withdrawal will cause the incapacitated individual pain or reduce that individual's comfort. A surrogate may not consent to the withholding or withdrawal of orally ingested nutrition or hydration unless provision of the nutrition or hydration is medically contraindicated.

SB312,7,8 (8) The surrogate shall act in good faith consistently with the desires of the incapacitated individual as expressed or otherwise specifically directed by the incapacitated individual to the surrogate at any time. The surrogate shall act in good faith consistently with any valid declaration executed by the incapacitated individual under subch. II of ch. 154. In the absence of a specific directive by the incapacitated individual or if the desires of the incapacitated individual are unknown, the surrogate shall, in good faith, act in the best interests of the incapacitated individual in exercising his or her authority.