¶ 9. The POLST form you have provided does not satisfy the statutory criteria for any of these instruments. It is unlike a declaration to physicians because it is not preconditioned on a terminal condition or persistent vegetative state, does not require verification of those conditions by two physicians, lacks the requirement for witnessing of the principal’s (or a proxy’s) signature, and would allow withholding of procedures even if it would lead to pain or discomfort. It is unlike a do-not-resuscitate order because it is not preconditioned on a terminal condition or finding about the inadequacy of cardiac or pulmonary resuscitation, lacks the signing requirement by a qualified patient or by a guardian or healthcare agent, and does not require a bracelet or that information about resuscitation be disclosed.
And the POLST is unlike the healthcare power of attorney because it lacks the requirement for witnessing of the principal’s, or a proxy’s, signature and does not prohibit withholding feeding tubes if it would cause pain or discomfort or withholding orally ingested nutrition or hydration if medically indicated.
¶ 10. Accordingly, because the statutes mandate that an instrument comply with the statutory requirements before immunity will apply, and in the absence of any other statutory or judicially created immunity, I conclude that reliance on a POLST form would not trigger immunity for a healthcare provider.
¶ 11. You also ask whether a POLST form is automatically invalid for all other purposes, such as evincing consent to a treatment. You ask what effect, if any, a POLST form may be given in court proceedings. I conclude that there is no absolute bar to a court considering a POLST form as evidence of a person’s wishes about medical care. Rather, whether a form is properly considered will depend on the circumstances.
¶ 12. There are two main considerations. First, the statutes do not expressly forbid considering a POLST form as evidence of a person’s wishes. Second, the Wisconsin Supreme Court has left open the possibility that evidence other than the statutory instruments may be considered.
¶ 13. First, a failure to execute a statutory instrument creates no presumption about the person’s wishes. For example, the absence of a declaration “creates no presumption that the person consents to the use or withholding of lifesustaining procedures or feeding tubes in the event that the person suffers from a terminal condition or is in a persistent vegetative state.” Wis. Stat. § 154.11(5). Similar language also appears with the other laws. See Wis. Stat. § 154.25(5)
(no presumption in the absence of a donot-resuscitate order); Wis. Stat. § 155.70(8) (no presumption in the absence of a healthcare power-of-attorney instrument).
In addition, the declaration to physicians and do-not-resuscitate laws state that the statutory mechanisms do not impair “other rights” a person has “to withhold or withdraw life-sustaining procedures or feeding tubes” or “to withhold or withdraw resuscitation.” Wis. Stat. §§ 154.11(4), 154.25(4). Accordingly, the statutes leave open the possibility that, in the absence of a statutory instrument, other evidence of a person’s intent might be considered. ¶ 14. Second, Wisconsin Supreme Court cases also leave open the possibility of other evidence. In the Matter of Guardianship of L.W., 167 Wis. 2d 53,
482 N.W.2d 60 (1992), addressed whether an incompetent individual in a persistent vegetative state had the right to refuse life-sustaining medical treatment, such as artificial nutrition and hydration. See id. at 63. The court addressed whether a guardian may exercise that right on the incompetent person’s behalf. See id.
The court concluded that an incompetent person in a persistent vegetative state has a constitutionally protected right to refuse that treatment, and that a guardian may consent to withdrawal, where it is determined that it is in the “best interests” of the ward. Id. ¶ 15. The ward in L.W. had not executed any statutory instrument, but the court recognized that a failure to take advantage of the statutes does not create a presumption regarding intent. Id. at 69-70, 75. The court went on to indicate that it would have considered whether L.W. had “expressed his wishes” in other ways,
“as far as they can be discerned.” See id. at 78-79. It turned out, however, that L.W. had not expressed his wishes in any manner. See id. at 78-80.
¶ 16. In the Matter of the Guardianship and Protective Placement of Edna M.F., 210 Wis. 2d 557, 563 N.W.2d 485 (1997), addressed the problem of discerning intent in determining whether a court-appointed guardian could withdraw artificial nutrition and hydration. In the course of that discussion, the court described ways to glean intent more broadly than by reference to statutory documents: “it is not in the best interests of the ward to withdraw life-sustaining treatment, including a feeding tube, unless the ward has executed an advanced directive or other statement clearly indicating his or her desires.” Id. at 567-68 (emphasis added). Along similar lines, the court went on to conclude that, “if her guardian can demonstrate by a preponderance of the evidence a clear statement of Edna’s desires in these circumstances, then it is in the best interests of Edna to honor those wishes.”
Id. at 569 (footnote omitted). ¶ 17. Accordingly, the statutes and cases do not prohibit other evidence of intent. Whether a particular expression is sufficiently clear, addresses the correct circumstances, and is not otherwise objectionable under the law or rules of evidence, would depend on the circumstances of a particular case. Depending on all the facts and circumstances, a court might determine that a POLST form provided evidence of the person’s intent.
¶ 18. In sum, I conclude that a POLST form will trigger no statutory immunities for healthcare providers where it lacks the features of statutory documents such as a declaration to physicians, do-not-resuscitate order, or healthcare power of attorney. A court might conclude, however, that a POLST form is relevant in discerning a person’s intent.
Sincerely,
J.B. VAN HOLLEN
Attorney General
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