155.01 NoteNOTE: Sub. (7) is shown as amended by 2023 Wis. Acts 81, 87, and 88 and as merged by the legislative reference bureau under s. 13.92 (2) (i). The cross-reference to subch. XI of ch. 448 was changed from subch. X of ch. 448 and the cross-reference to subch. XII of ch. 448 was changed from subch. XI of ch. 448 by the legislative reference bureau under s. 13.92 (1) (bm) 2. to reflect the renumbering under s. 13.92 (1) (bm) 2. of subchs. X and XI of ch. 448. 155.01(8)(8) “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 health care decisions. 155.01(9)(9) “Multipurpose senior center” means a facility that is the focal point for the delivery of services in a community to individuals aged 60 or older for purposes of the state plan under 42 USC 3027. 155.01(10)(10) “Power of attorney for health care” means the designation, by an individual, of another as his or her health care agent for the purpose of making health care decisions on his or her behalf if the individual cannot, due to incapacity. 155.01(11)(11) “Principal” means an individual who executes a power of attorney for health care. 155.01(12)(12) “Relative” means an individual related by blood within the 3rd degree of kinship as computed under s. 990.001 (16); a spouse, domestic partner under ch. 770, or an individual related to a spouse or domestic partner within the 3rd degree as so computed; and includes an individual in an adoptive relationship within the 3rd degree. 155.01 HistoryHistory: 1989 a. 200; 1991 a. 281; 1993 a. 27, 105, 112, 490; 1995 a. 27 ss. 4395, 9126 (19); 1997 a. 35, 67; 1999 a. 9, 180; 2001 a. 70, 89, 105; 2005 a. 22; 2007 a. 20 s. 9121 (6) (a); 2009 a. 28, 165; 2019 a. 90, 100; 2021 a. 22; 2021 a. 23 s. 71; 2021 a. 123, 130, 131, 251; 2023 a. 81, 87, 88; s. 13.92 (1) (bm) 2.; s. 13.92 (2) (i). 155.05155.05 Power of attorney for health care. 155.05(1)(1) An individual who is of sound mind and has attained age 18 may voluntarily execute a power of attorney for health care. An individual for whom an adjudication of incompetence and appointment of a guardian of the person is in effect in this state is presumed not to be of sound mind for purposes of this subsection executing a power of attorney for health care. 155.05(2)(2) Unless otherwise specified in the power of attorney for health care instrument, an individual’s power of attorney for health care takes effect upon a finding of incapacity by 2 physicians, as defined in s. 448.01 (5), or one physician and one licensed advanced practice clinician, who personally examine the principal and sign a statement specifying that the principal has incapacity. Mere old age, eccentricity or physical disability, either singly or together, are insufficient to make a finding of incapacity. Neither of the individuals who make a finding of incapacity may be a relative of the principal or have knowledge that he or she is entitled to or has a claim on any portion of the principal’s estate. A copy of the statement, if made, shall be appended to the power of attorney for health care instrument. 155.05(3)(3) No health care provider for an individual, employee of that health care provider or employee of a health care facility in which an individual is a patient or resides, or a spouse of any of those providers or employees, may be designated by the individual as a health care agent unless the health care provider, employee or spouse of the provider or employee is a relative of the individual. 155.05(4)(4) The desires of a principal who does not have incapacity supersede the effect of his or her power of attorney for health care at all times. 155.05(5)(5) A principal may designate an alternate individual to serve as his or her health care agent in the event that the health care agent first designated is unable or unwilling to do so. 155.05 AnnotationWisconsin’s Power of Attorney for Health Care. Sweet. Wis. Law. Sept. 1990.
155.05 AnnotationPlanning Ahead for Incapacity. Shapiro. Wis. Law. Aug. 1991.
155.10155.10 Power of attorney for health care instrument; execution; witnesses. 155.10(1)(1) A valid power of attorney for health care instrument shall be all of the following: 155.10(1)(b)(b) Dated and signed by the principal or by an individual who has attained age 18, at the express direction and in the presence of the principal. 155.10(1)(c)(c) Signed in the presence of 2 witnesses who meet the requirements of sub. (2). 155.10(2)(2) A witness to the execution of a valid power of attorney for health care instrument shall be an individual who has attained age 18. No witness to the execution of the power of attorney for health care instrument may, at the time of the execution, be any of the following: 155.10(2)(a)(a) Related to the principal by blood, marriage, or adoption, or the domestic partner under ch. 770 of the individual. 155.10(2)(b)(b) Have knowledge that he or she is entitled to or has a claim on any portion of the principal’s estate. 155.10(2)(c)(c) Directly financially responsible for the principal’s health care. 155.10(2)(d)(d) An individual who is a health care provider who is serving the principal at the time of execution, an employee, other than a chaplain or a social worker, of the health care provider or an employee, other than a chaplain or a social worker, of an inpatient health care facility in which the principal is a patient. 155.10(3)(3) For purposes of sub. (1) (c), “in the presence of” includes the simultaneous remote appearance by 2-way, real-time audiovisual communication technology if all of the following conditions are satisfied: 155.10(3)(a)(a) The signing is supervised by an attorney in good standing licensed by this state. The supervising attorney may serve as one of the remote witnesses. 155.10(3)(b)(b) The principal attests to being physically located in this state during the 2-way, real-time audiovisual communication. 155.10(3)(c)(c) Each remote witness attests to being physically located in this state during the 2-way, real-time audiovisual communication. 155.10(3)(d)(d) The principal and each of the remote witnesses identify themselves. If the principal and remote witnesses are not personally known to each other and to the supervising attorney, the principal and each of the remote witnesses display photo identification. 155.10(3)(e)(e) The principal identifies anyone else present in the same physical location as the principal and, if possible, the principal makes a visual sweep of the principal’s physical surroundings so that the supervising attorney and each remote witness can confirm the presence of any other person. 155.10(3)(f)(f) The principal displays the power of attorney for health care, confirms the total number of pages and the page number of the page on which the principal’s signature will be affixed, and declares to the remote witnesses and the supervising attorney all of the following: 155.10(3)(f)2.2. That the document is the principal’s power of attorney for health care. 155.10(3)(f)3.3. That the document is being executed as a voluntary act. 155.10(3)(g)(g) The principal, or an individual 18 years of age or older at the express direction and in the physical presence of the principal, dates and signs the power of attorney for health care in a manner that allows each of the remote witnesses and the supervising attorney to see the execution. 155.10(3)(h)(h) The audiovisual communication technology used allows communication by which a person is able to see, hear, and communicate in an interactive way with another person in real time using electronic means, except that if the principal, a remote witness, or the supervising attorney has an impairment that affects hearing, sight, or speech, assistive technology or learned skills may be substituted for audio or visual if it allows that person to actively participate in the signing in real time. 155.10(3)(i)(i) The power of attorney for health care indicates that it is being executed pursuant to this subsection. 155.10(3)(j)1.1. The principal, or another person at the direction of the principal, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original power of attorney for health care to the supervising attorney within a reasonable time after execution. The supervising attorney then personally delivers or transmits by U.S. mail or commercial courier service the entire signed original power of attorney for health care to the remote witnesses within a reasonable time. The first remote witness to receive the original power of attorney for health care signs and dates the original power of attorney for health care as a witness and forwards the entire signed original power of attorney for health care by personal delivery or U.S. mail or commercial courier service within a reasonable time to the 2nd remote witness, who signs and dates it as a witness and forwards the entire signed original power of attorney for health care by personal delivery or U.S. mail or commercial courier service within a reasonable time to the supervising attorney. 155.10(3)(j)2.2. The principal, or another person at the direction of the principal, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original power of attorney for health care to the supervising attorney within a reasonable time after execution and transmits by facsimile or electronic means a legible copy of the entire signed power of attorney for health care directly to each remote witness within a reasonable time after execution. Each remote witness then signs the transmitted copy of the power of attorney for health care as a witness and personally delivers or transmits by U.S. mail or commercial courier service the entire signed copy of the power of attorney for health care to the supervising attorney within a reasonable time after witnessing. The signed original and signed copies together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving the signed original and signed copies, compiles the signed original and signed copies into one document by attaching the signature pages of each remote witness to the original signed by or on behalf of the principal, in which case the compiled document shall constitute the original. 155.10(3)(j)3.3. The principal and each of the remote witnesses sign identical copies of the original. The principal, or another person at the direction of the principal, and each of the remote witnesses personally deliver or transmit by U.S. mail or commercial courier service the signed originals to the supervising attorney within a reasonable time after execution. All of the signed originals together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving all signed originals, compiles the originals into one document by attaching the signature pages of each remote witness to the original signed by or on behalf of the principal, in which case the compiled document shall constitute the original. 155.10(3)(k)(k) The supervising attorney completes an affidavit of compliance that contains the following information: 155.10(3)(k)2.2. The name and residential or business address of each remote witness. 155.10(3)(k)3.3. The address within this state where the principal was physically located at the time the principal signed the power of attorney for health care. 155.10(3)(k)4.4. The address within this state where each remote witness was physically located at the time the remote witness witnessed the principal’s execution of the power of attorney for health care. 155.10(3)(k)5.5. A statement that the principal and remote witnesses were all known to each other and the supervising attorney or a description of the form of photo identification used to confirm the identity of the principal and each remote witness. 155.10(3)(k)6.6. Confirmation that the principal declared that the principal is 18 years of age or older, that the document is the principal’s power of attorney for health care, and that the document was being executed as the principal’s voluntary act. 155.10(3)(k)7.7. Confirmation that each of the remote witnesses and the supervising attorney were able to see the principal, or an individual 18 years of age or older at the express direction and in the physical presence of the principal, sign, and that the principal appeared to be 18 years of age or older and acting voluntarily. 155.10(3)(k)8.8. A description of the audiovisual technology used for the signing process. 155.10(3)(k)9.9. If the power of attorney for health care was not signed in counterpart, a description of the method used to forward the power of attorney for health care to each remote witness for signing and to the supervising attorney after signing. 155.10(3)(k)10.10. If the power of attorney for health care was signed in counterpart, a description of the method used to forward each counterpart to the supervising attorney and, if applicable, how and when the supervising attorney physically compiled the signed paper counterparts into a single document containing the power of attorney for health care, the signature of the principal, and the signatures of the remote witnesses. 155.10(3)(k)11.11. The name, state bar number, and business or residential address of the supervising attorney. 155.10(3)(k)12.12. Any other information that the supervising attorney considers to be material with respect to the principal’s capacity to sign a valid power of attorney for health care, the principal’s and witnesses’ compliance with this section, or any other information that the supervising attorney deems relevant to the execution of the power of attorney for health care. 155.10(3)(L)(L) The affidavit of compliance is attached to the power of attorney for health care. 155.10(3)(m)(m) An affidavit of compliance described in this subsection shall be substantially in the following form: AFFIDAVIT OF COMPLIANCE
State of ....
County of ....
The undersigned, being first duly sworn under oath, states as follows:
This Affidavit of Compliance is executed pursuant to Wis. Stat. § 155.10 (3) to document the execution of the power of attorney for health care of [name of principal] via remote appearance by 2-way, real-time audiovisual communication technology on [date]. 1. The name and residential address of the principal is ....
2. The name and [residential or business] address of remote witness 1 is ....
3. The name and [residential or business] address of remote witness 2 is ....
4. The address within the state of Wisconsin where the principal was physically located at the time the principal signed the power of attorney for health care is ....
5. The address within the state of Wisconsin where remote witness 1 was physically located at the time the remote witness witnessed the principal’s execution of the power of attorney for health care is ....
155.10(3)(m)6.6. The address within the state of Wisconsin where remote witness 2 was physically located at the time the remote witness witnessed the principal’s execution of the power of attorney for health care is .... 155.10(3)(m)7.7. The principal and remote witnesses were all known to each other and to the supervising attorney. - OR - The principal and remote witnesses were not all known to each other and to the supervising attorney. Each produced the following form of photo identification to confirm his or her identity: ....
8. The principal declared that the principal is 18 years of age or older, that the document is the principal’s power of attorney for health care, and that the document was being executed as the principal’s voluntary act.
9. Each of the remote witnesses and the supervising attorney were able to see the principal, or an individual 18 years of age or older at the express direction and in the physical presence of the principal, sign. The principal appeared to be 18 years of age or older and acting voluntarily.
10. The audiovisual technology used for the signing process was ....
11. The power of attorney for health care was not signed in counterpart. The following methods were used to forward the power of attorney for health care to each remote witness for signing and to the supervising attorney after signing. - OR - The power of attorney for health care was signed in counterpart. The following methods were used to forward each counterpart to the supervising attorney. [If applicable] - The supervising attorney physically compiled the signed paper counterparts into a single document containing the power of attorney for health care, the signature of the principal, and the signatures of the remote witnesses on [date] by [e.g., attaching page 7 from each counterpart signed by a remote witness to the back of the power of attorney for health care signed by the principal].
12. The name, state bar number, and business or residential address of the supervising attorney is ....
13. [Optional] Other information that the supervising attorney considers to be material is as follows: ....
.... (signature of supervising attorney)
Subscribed and sworn to before me on .... (date) by .... (name of supervising attorney).
.... (signature of notarial officer)
Stamp
.... (Title of office)
[My commission expires: ....]
155.10 AnnotationWisconsin statutes provide three instruments through which an individual may state healthcare wishes in the event of incapacitation: a declaration to physicians, a do-not-resuscitate order, and a health care power of attorney. These statutory instruments apply under specific circumstances, have their own signature requirements, and may be limited in the extent of authorization they afford. A form will trigger no statutory immunities for healthcare providers when it lacks the features of these statutory documents. A court might conclude, however, that such a form is relevant in discerning a person’s intent. OAG 10-14. 155.20155.20 Health care agent; powers; limitations. 155.20(1)(1) Unless the power of attorney for health care instrument otherwise provides and except as specified in subs. (2) (a) and (b), (3) and (4) and s. 155.60 (2), the health care agent who is known to the health care provider to be available to make health care decisions for the principal has priority over any individual other than the principal to make these health care decisions.
