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Greater Wisconsin Agency on Aging Resources, Inc.
Guardianship Support Center
RESPONSIBILITIES OF A HEALTH CARE AGENT UNDER A
WISCONSIN POWER OF ATTORNEY FOR HEALTH CARE
This document is for informational purposes only and does not provide legal advice.
01/2011, updated 3/2019
I. Introduction
You have been chosen by a loved one or friend (the principal), to serve as agent under a Power of
Attorney for Health Care document. You have undertaken an important responsibility by agreeing to act
as agent if the principal is ever unable to advocate because of incapacity. The principal has chosen you as
agent because they trust you to implement their health care wishes.
A health care agent makes “health care” decisions on behalf of a principal when the principal is not able
to make those decisions themselves because of incapacity. Many believe that family members, such as
spouses, can legally make health care decisions on behalf of their loved ones. However, this is not the
law. In Wisconsin, only a person’s legally authorized representative – an agent under a valid Power of
Attorney for Health Care document or a court-appointed guardian of the person – may provide informed
consent to health care treatment on behalf of another adult. The duties of a health care agent are
described in Chapter 155 of the Wisconsin Statutes. The following information explains these duties and
may assist you in determining how to best fulfill your role.
II. When Does an Agent’s Authority to Make Decisions Begin?
Most Power of Attorney for Health Care documents provide that the document becomes “activated”
when two physicians or one physician and one psychologist personally examine the principal and then
sign a statement certifying that the principal is incapacitated. Incapacity means the principal is not able
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.” See Wis. Stat. § 155.01(08).
This certification of incapacity must be attached to the POA document.
Some individually tailored Power of Attorney for Health Care documents provide for an alternate method
of activation. For example, an agent may have authority to make medical decisions on behalf of the
principal when the principal has been determined incapacitated by only one physician. A Power of
Attorney for Health Care can also be drafted so it is active immediately, although the desires of a
principal without incapacity will always supersede the effect of the Power of Attorney document. Check
your principal’s document to determine when your authority to make decisions begins.
www.gwaar.org/gsc
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III. What Types of Decisions May an Agent Make?
As agent, you may only make “health care decisions”. A “health care decision” is defined as “an informed
decision in the exercise of the right to accept, maintain, diagnose or treat an individual’s physical or
mental condition.” “Health care” is defined as “any care, treatment, service or procedure to maintain,
diagnose or treat an individual’s physical or mental condition.” Thus, depending on the exact language of
the document, you may choose medical professionals and facilities, and consent to surgical procedures
and medications. You may also make certain end-of-life decisions on the principal’s behalf if the principal
has delegated that authority to you. Keep in mind that your decision-making authority is not only about
end-of-life decisions. If you are an agent for an individual with an incapacitating chronic illness, long-
term disability or mental health condition, you may be the agent for many years.
Note that you do not have authority to decide non-medical issues, such as who may visit the principal at
a nursing home, whether the principal may smoke or what they must eat unless it is directly tied to a
health care decision. For example, instructions could be given for the individual not to eat after a certain
time due to fasting lab work but could not be given to restrict types of food in general. An incapacity to
make health care decisions does not mean the individual has legally lost other decision-making abilities.
IV. What Standard Does an Agent Use to Make Health Care Decisions?
As agent, you must act in good faith consistently with the desires of the principal as expressed in the
Power of Attorney for Health Care document or as otherwise specifically directed by the principal to you
at any time – even after incapacity. You may not make medical decisions based on your own religious or
moral views. The law provides specific guidance on how you make medical decisions on behalf of a
principal, as follows:
• First, you determine what the principal’s current wishes are regarding treatment, if the principal
can express those wishes. You are obligated to follow the treatment wishes of the principal as
expressed at any time, even after the principal has been determined incapacitated. This is true
even if the principal can only express their wishes by nodding their head or blinking their eyes.
• Second, if the principal is currently unable to express his or her wishes, you may rely on the
principal’s previously expressed treatment wishes. These wishes may be contained in the power
of attorney document itself, or may have been expressed verbally to you or other family and
friends.
• Finally, if the principal has never expressed his or her wishes regarding the treatment, and is
currently unable to express those wishes, you may make the medical decision based on what you
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feel would be in the principal’s best interests. You should consider the principal’s values and
beliefs when making this decision.
If you have not done so already, you should immediately speak with the principal about his or her wishes
regarding medical treatment. Determine preferences the principal has regarding treatment, providers
and medication. Discuss end-of-life treatment at length. If the individual has a Living Will, obtain a copy
of the Living Will and discuss the decisions the principal made in that document. Learn the person’s
values and beliefs about various medical treatment options. If the principal is not able to discuss his or
her treatment preferences, ask family and friends if the principal had discussed health care treatment
with them at any time.
V. Are There Medical Decisions an Agent Is Prohibited in Making Under Any
Circumstances?
Under Wisconsin law, you cannot consent to admission of the principal to an institution for mental
diseases, an intermediate care facility for persons with an intellectual disability, to a state treatment
facility or a treatment facility. Additionally, you may not consent to experimental mental health research
or to psychosurgery, electroconvulsive treatment or drastic mental health treatment procedures for the
principal.
VI. May an Agent Make Every Health Care Decision?
Not automatically. As agent there are certain health care decisions you may not make unless the
principal has given you specific authority in the document itself. These include:
• Admitting the principal to a community based residential facility or nursing home for long-term
placement.
• Consenting to the withholding or withdrawal of feeding tubes.
• Making health care decisions if you know the principal is pregnant.
If the principal has not given you specific authority to admit him or her to a nursing home or community
based residential facility for long-term placement, you will need to go to court to be appointed guardian
and obtain a protective placement order to have this authority.
VII. What Authority Does an Agent Have to Admit a Principal to a Residential Facility?
As agent, you may admit a principal to a nursing home or community based residential facility for long-
term care only if the principal has given you that specific authority in the Power of Attorney for Health
Care document, and if the principal is not diagnosed as developmentally disabled or as having mental
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illness at the time of the proposed admission. As agent, you may admit a principal to a nursing home for
a short-term stay (up to 3 months) for recuperative care if the principal is admitted directly from a
hospital inpatient unit, unless the hospital admission was for psychiatric care, regardless of whether the
principal has specifically authorized you to admit the principal for long-term care in the POA document.
Also, if you and the principal live together, you may admit the principal to a nursing home or community-
based residential facility temporarily for up to 30 days for a vacation or due to a family emergency.
All of the above statutory ways to admit a principal to a facility may only be used when the principal is
not objecting to the admission. If the individual objects, and you still believe it is necessary to place the
individual in a nursing home or community based residential facility, you must go to court to obtain a
guardianship and protective placement order.
VIII. How Can an Agent Best Advocate for the Principal in Making Medical Decisions?
To assure that the principal is receiving adequate care, an agent should:
• Prior to admitting an individual to a nursing home or other facility, explore all possible options to
determine the best residential setting for the principal that provides the least restrictions on their
liberty, and provides as many activities and amenities as possible. Look into staff ratios,
qualifications and the facility’s general reputation for quality care.
• Visit the principal as often as possible, but at least once a month, and more often if the principal is
experiencing rapidly changing medical conditions. You may be the only sentinel to protect the
individual from abuse or neglect whether the individual lives at home or in a facility.
• Become knowledgeable about the principal’s medical conditions through resources such as
medical dictionaries, medical journals and the Internet. Be advised of and research possible
treatment options, risks and benefits of various treatments, and side effects of medication.
Review the principal’s medical records, and get second medical opinions where appropriate.
• Release medical records to appropriate professionals.
• Provide informed consent or refusal for the principal’s health care needs. Attend facility staffings
and meetings. Insist that providers contact you with details about any change in the principal’s
medical condition, adverse medication reactions, and injuries.
• Become familiar with the resident’s rights in the facility where the principal resides. You should
be given a copy of these rights when admitting a principal to a facility. Be an advocate for their
rights if you believe their rights are being violated or they are not receiving proper care.
IX. When Do My Duties as Agent Come to an End?
Your duties as agent may come to an end in several ways. If the principal dies, your authority ceases by
law. If the principal revokes his or her Power of Attorney for Health Care document, you authority ends
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when notice is received of the revocation. A principal may revoke a Wisconsin Power of Attorney for
Health Care document at any time, even after incapacity, by doing any of the following:
• canceling, defacing, obliterating, burning, tearing or otherwise destroying the document, or
directing another in their presence to so destroy it;
• executing a signed and dated written statement, expressing their intent to revoke the document;
• verbally expressing their intent to revoke the document in the presence of two witnesses; or,
• executing a new Power of Attorney for Health Care document.
Additionally, the principal’s document is automatically revoked and invalidated if you and the principal
are married and your marriage is later annulled or you divorce. You are obligated by law to notify all of
the principal’s health care providers if the principal’s document is revoked. The provider must record this
revocation in their files.
You may become unwilling or unable to serve as agent because of death, disability or other reason. If
so, the person designated as alternate agent will begin to serve as agent. If there is no alternate agent,
the principal will need to have a court appointed legal guardian. In some cases, as agent under a Power
of Attorney for Health Care document you may be removed in judicial proceedings, such as where a
legal guardian has been appointed (see below), or because of an interested person petitioning the court
to review your performance as agent.
X. What Is the Role of the Alternate Agent?
The principal may have chosen an alternate agent to serve when the primary agent is unable or unwilling
to serve. Decision-making for an incapacitated principal is not joint between an agent and alternate
agent but successive. This means that the alternate agent’s authority only begins when the primary
agent has died or becomes otherwise unable or unwilling to serve. Having one person at a time serve as
agent helps promote continuity of care for the principal through consistent and informed decision
making, and avoids family conflict possibly resulting in guardianship. The alternate agent can potentially
act temporarily when the primary agent is unavailable, for example, if they are out of the country or they
are dealing with their own health struggle. There is no formalized procedure in the statutes that details
how to go about this process. It is best to put it in writing when the agents are temporarily switching
roles.
XI. What Is the Relationship Between Guardianship and a Power of Attorney for
Health Care Document?
One of the most important reasons individuals execute Power of Attorney for Health Care documents is
to avoid the need for invasive, costly and time-consuming court procedures to appoint a guardian if they
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become incompetent. Family, friends or other interested persons, however, may seek guardianship of
the person and/or estate despite the principal having executed a Power of Attorney for Health Care
document. For example, a family member of the principal may feel, rightly or wrongly, that the agent is
not fulfilling his or her duties as agent and file a petition to become the individual’s guardian. Other
reasons to obtain guardianship when there is already a Power of Attorney include if there is a decision in
an area the power of attorney does not address, or long-term admission is needed into a nursing home
and the power of attorney did not grant that authority.
Where a petition for guardianship has been filed, the court must appoint the agent as guardian unless it
is not in the proposed ward’s best interest. If the principal is adjudicated incompetent in this state the
POA-HC remains except that a court may, for good cause, revoke and invalidate the POA for Health Care
or limit the authority of the agent under the POA-HC. If the court does not revoke or limit the power of
attorney, the guardian for the individual may not make health care decisions for the ward that may be
made by the health care agent, unless the guardian is also the health care agent.
XII. As Health Care Agent, When Are You Liable?
You are not personally liable for medical costs incurred by the principal, including the cost of the nursing
home or other facility, unless you are the spouse of the principal. No health care agent may be charged
with a crime or held civilly liable for making a decision in good faith under a Power of Attorney for Health
Care document. When you are signing legal documents, be sure to indicate you are signing as the Power
of Attorney agent for the individual.
If someone petitions the court to review the conduct of the agent, you could be directed by the court to
act in accordance with the POA document, be required to report to court regarding your performance or
the court could rescind your duties if it finds you have not been performing in accordance with the power
of attorney document.
QUESTIONS? Call the Wisconsin Guardianship Support Center at 1-855-409-9410 or email us at
[email protected]. The Guardianship Support Center is a neutral informational resource. We are
unable to provide legal advice or representation.
Reproduction of this brochure is permitted and encouraged, so long as no modifications are made and
credit to the Wisconsin Guardianship Support Center of the Greater Wisconsin Agency on Aging
Resources, Inc., is retained.
This publication is provided for educational purposes only.
The information contained herein is not intended, and should not be used, as legal advice. Application of
the law depends upon individual facts and circumstances. In addition, statutes, regulations and case law
are subject to change without notice. Consult a legal professional for assistance with individual legal issues.
