The “Living Will” or “Declaration to Physicians” allows an individual to sign a document stating the individual’s desire to refuse certain life-support devices in the event of a terminal illness or incurable injury where an individual’s death is “imminent” or where an individual is in a persistent vegetative state. By signing the Living Will, an individual is requesting that “life-sustaining” procedures be withheld.

Life-sustaining procedures include assistance with respiration, artificial maintenance of heart rate or blood pressure, blood transfusion, and kidney dialysis. Since 1991, it may also include the withholding or withdrawal of artificial nutrition or hydration, also known as tube feedings.

The Living Will must be witnessed by two people. These witnesses cannot be related to the individual, cannot be entitled to any part of the individual’s estate, and cannot be providing medical care to the individual. Neither the attending physician nor any member of his or her staff or any other member of the health care profession who may be involved in the individual’s medical care (other than a staff social worker or clergy) may be witnesses.

An individual’s terminal illness or persistent vegetative state must be certified in writing by two physicians, one of whom must be the attending physician. Both physicians must have examined the individual.

After signing the Living Will, the individual should provide a copy to his or her health care providers and ask that it be made a part of his or her medical record. He or she should also let family and friends know that a Living Will has been signed and where an additional copy is stored. The law provides protection to health care providers who honor the statutory Living Will. Up to four free copies of the statutory Declaration to Physicians (Living Will) may be obtained by sending a self-addressed, stamped envelope to:

Declaration to Physicians
Division of Health
PO Box 309
Madison, WI 53701-0309

Since 1990 Wisconsin has had a standard form that allows any mentally competent individual the age of 18 or over (the “principal”) to appoint another person as his or her “health care agent” to make health care decisions if and when the principal is unable to do so.

If an individual does not execute a Durable Power of Attorney for Health Care document and becomes incapacitated, a guardian will have to be appointed to make health care decisions. However, there is an exception with regard to hospice care. If an individual becomes incapacitated, a spouse, other family members, a partner, or a friend (the law establishes the order) can consent to hospice care for an individual who is incapacitated.

The statutory form allows the principal to designate both a primary and alternate health care agent. Although it is advisable to have an alternate agent, the Durable Power of Attorney for Health Care is still valid if an alternate is not named.

The health care agent should be someone the principal trusts. It should be a person who will know what the principal wants and will be comfortable advocating on behalf of the principal. The agent should be an assertive individual who will energetically speak on behalf of the patient. It is also helpful for the agent to live in the same or nearby community. An individual may select anyone as an agent, except for the individual’s health care providers, the providers’ employees, or spouses of providers or employees (unless this health care provider, employee, or employee’s spouse is also a relative). Close family members, other relatives, and friends are good choices to serve as the agent. The principal should thoroughly discuss his or her health care preferences with both the health care agent and the alternate agent before signing the document.

The health care agent does not have to be the same person who is assigned to handle financial issues and, in fact, often is not. A financial agent (or institution such as a bank trust department) should be a person or entity who has the ability to handle money and keep records, while a health care agent has very different responsibilities.

The standard statutory form provides for several specific decisions in the form of YES or NO questions. These include whether the principal gives the agent authority to: (1) admit the principal to a nursing home or community-based residential facility (CBRF) (2) withhold or withdraw non-oral nutrition and hydration (i.e., feeding tubes), and (3) continue to make medical treatment decisions during pregnancy. (Note: For men, and for women no longer capable of becoming pregnant, it is suggested that the words "Not Applicable" or N/A be printed next to this third YES or NO question.) In each case, if the principal has checked NO or left the question blank, the agent will not be able to act on the principal’s behalf.

There is an important exception to the nursing home provision. Even if the principal checks NO, there is still the possibility of admission to a facility for short-term recuperative care. This could occur if the principal were, for example, in an accident and needed more care than could be given at home for a short period of time.

Checking NO or leaving blank the question about nursing home and CBRF admission does not mean that the principal will be able to avoid admission to either of those facilities. If NO is checked or that question is left blank and the principal’s condition necessitates placement in such a facility, a guardian will have to be appointed.

This form may also be used to indicate whether individuals wish to make any anatomical gifts after their death.

If a person wishes to complete a Durable Power of Attorney for Health Care but has already executed a Living Will and the two documents are contradictory, it is possible to use the “Special Provisions” section of the Durable Power of Attorney for Health Care to revoke any prior executed Living Will. This “Special Provisions” section should also be used to personalize the form by inserting any other preferences of the principal.

Two witnesses are required for proper execution of the Durable Power of Attorney for Health Care. Individuals who may not serve as witnesses are the health care agent or alternate; health care providers and people who work for health care facilities serving the principal (other than staff social workers and clergy); persons who will inherit under the principal’s will; family who are related by blood, marriage, or adoption; and a person who is financially responsible for the principal’s health care.

Once completed, a copy of the Durable Power of Attorney for Health Care should be given to the primary health care agent. The principal should retain the original in an accessible place. Photocopies of the Durable Power of Attorney for Health Care are valid. Copies of this document should be distributed as follows: (1) to the alternate health care agent, (2) to the principal’s doctor, (3) to the principal’s hospital, and (4) to close family members or friends. It is a good idea for the principal to discuss the document with his or her doctor because some doctors may be uncomfortable or even unwilling to honor his or her wishes. Should this occur, the doctor has a responsibility to refer the principal to a physician who will honor his or her wishes.

If the principal changes his or her mind at any time, he or she may revoke the Durable Power of Attorney for Health Care and make a new document. Revocation may be accomplished by destroying or verbally revoking the old document in the presence of two witnesses.

The best method of revocation, however, is to write a statement revoking the Durable Power of Attorney for Health Care, sign it, and date it. Copies of the revocation should then be given to each person who has a copy of the form.

The Durable Power of Attorney for Health Care document may be drafted by an attorney or completed on the standard statutory form. Copies of the Durable Power of Attorney for Health Care form are available from the Department of Health and Family Services by sending a stamped, self-addressed envelope to:

Power of Attorney for Health Care
Division of Health
PO Box 309
Madison, WI 53701-0309

It is possible to obtain a packet that includes both the statutory Living Will and the Durable Power of Attorney for Health Care forms, complete with step-by-step instructions for completing the documents, by sending a business-size envelope with three first class stamps to:

CWAG
2850 Dairy Dr., Suite 100
Madison, WI 53718
Phone: 1-800-488-2596