Living will requirements in Wisconsin

Which document this is

Wisconsin splits its advance directive into two separate statutes, each with its own name. The living will is the Declaration to Health Care Professionals, created under Wis. Stat. ch. 154, and it states whether you want life-sustaining procedures or a feeding tube withheld if you are ever diagnosed with a terminal condition or found to be in a persistent vegetative state. The document that names your decision-maker is the Power of Attorney for Health Care, created under a separate chapter, ch. 155, and the person you name in it is your health care agent, Wisconsin’s own term.

Neither statute requires you to use the state’s own printed form. What Wisconsin does require is a notice: if you sign a Power of Attorney for Health Care that is not the department’s own form and was sold to you without a lawyer’s advice, or you use some other instrument entirely, that document has to carry a specific statutory warning, or your lawyer’s signed certificate, in its place. And if the two documents ever conflict, Wisconsin has already picked a winner: the Power of Attorney for Health Care controls over anything the Declaration says differently.

This is the pair Myend’s Healthcare Directive prepares for Wisconsin: a Declaration for your wishes, and a Power of Attorney for Health Care for your health care agent, each signed the way its own chapter requires.

Who can make one in Wisconsin

Both documents ask the same thing of you: that you are 18 or older and of sound mind when you sign. For the Declaration, that means you generally understand what the document does and what it is for.

The Power of Attorney for Health Care carries one extra rule. If a court has already found you incompetent and appointed a guardian for you, Wisconsin presumes you are not of sound mind for the purpose of signing one. Outside that specific situation, sound mind is the same practical test as the Declaration’s.

Signing it so it counts

Wisconsin runs two signings, one for each document, and gives them nearly the same shape: two witnesses, no notary, on both papers. Do not assume a rule from one carries over to the other; each chapter states its own requirements.

The Declaration to Health Care Professionals

1. 1You sign

   You sign the Declaration yourself. If you are unable to sign, someone else may sign at your express direction and in your presence, and that proxy signature has to happen, or be acknowledged, in front of two witnesses.

2. 2Two witnesses watch you sign

   The statute requires the Declaration to be signed by you in the presence of two witnesses, and the state’s own form spells out the rest: you and the two witnesses must sign the document at the same time. Wisconsin does not accept a notary in place of them; the Declaration statute never mentions one.

3. 3Who cannot witness

   A witness cannot be under 18, related to you by blood, marriage or adoption, entitled to or claiming any part of your estate, directly financially responsible for your health care, or a health care provider treating you, or that provider’s employee, apart from a chaplain or social worker.

The Power of Attorney for Health Care

Naming your health care agent is a separate signing, on its own paper, but Wisconsin gives it nearly the same shape as the Declaration rather than a stricter one. The instrument has to be in writing, dated, and signed by you, or by someone 18 or older at your express direction and in your presence if you cannot sign it yourself, then signed in front of two witnesses.

1. 1You sign

   You date and sign the instrument, or direct someone 18 or older to do it for you, in your presence.

2. 2Two witnesses watch you sign

   The instrument has to be signed in the presence of two witnesses, and the state’s form repeats that the principal and the witnesses all sign at the same time. They meet the same disqualification rule as the Declaration’s, plus two more: a witness cannot be your domestic partner under Chapter 770, and cannot be the health care agent you are naming.

Wisconsin adds one option most states do not have. Since 2023 Wis. Act 130, both the Declaration and the Power of Attorney for Health Care may be signed remotely, over two-way, real-time audiovisual technology, as long as a Wisconsin attorney in good standing supervises the whole signing and may act as one of the remote witnesses. You and each remote witness have to confirm you are physically in Wisconsin, show photo identification if you are not already known to each other, and state in the document itself that it was executed this way. The original then has to reach every witness and the supervising attorney by mail, courier, personal delivery, or in signed counterparts, and the attorney completes a notarized affidavit confirming all of that, attached to the finished document.

Naming your health care agent

The Power of Attorney for Health Care is where you name your health care agent, the person who makes health care decisions for you once the document takes effect. Wisconsin’s restriction turns on your relationship to the person, not their occupation alone. A health care provider treating you, an employee of that provider, an employee of a facility where you are a patient or resident, or the spouse of any of them cannot serve, unless that person is also your relative as Wisconsin defines it: related to you by blood within the third degree, your spouse or domestic partner, or their relatives, within the third degree, or related to you by adoption within the third degree.

Outside that restriction, Wisconsin does not limit who you can name. Once the Power of Attorney for Health Care takes effect, your health care agent steps into the decisions you would otherwise make for yourself, and your own desires supersede the document at all times while you still have capacity.

When it takes effect

The two documents turn on at different moments. The Declaration becomes operative once two health care professionals, one of them your attending professional and one a physician, have personally examined you and certified in writing that you have a terminal condition or are in a persistent vegetative state.

The Power of Attorney for Health Care runs on a different trigger, unless the instrument itself says otherwise. It takes effect on a finding of incapacity by two physicians, or one physician and one licensed advanced practice clinician, who personally examine you and sign a statement to that effect. Old age, eccentricity or a physical disability, alone or together, are not enough to support that finding, and neither of the two examiners can be your relative or have a claim on your estate.

If you are pregnant

Wisconsin’s two documents handle pregnancy in opposite ways, so read each on its own. The operative sentence for the Declaration is in the statute itself, not in the printed form: the declaration of a qualified patient who is diagnosed as pregnant by the attending health care professional has no effect during the course of the pregnancy. Note who has to make that call. It is a diagnosis by your attending health care professional, which in this chapter means a physician, a physician assistant or an advanced practice registered nurse, not simply somebody knowing. There is no viability test and no partial exception; the Declaration is set aside entirely until the pregnancy ends.

Changing or cancelling it

Each document has its own revocation rule. You can revoke your Declaration at any time: destroy or deface it yourself, or direct someone to do it in your presence; sign and date a written revocation; say so out loud, though a verbal revocation only takes effect once your attending health care professional is actually told about it; or execute a later Declaration.

The Power of Attorney for Health Care is revoked in the same four ways, but its verbal option needs two witnesses rather than a notified professional: destroy it or direct someone to in your presence, sign a dated written statement of intent, say so in front of two witnesses, or execute a later instrument. One automatic trigger applies only to this document: if your health care agent is your spouse or domestic partner and the marriage or partnership ends, the appointment is automatically revoked and the instrument is invalidated. That automatic revocation does not touch your separate Declaration, which survives on its own. Being adjudicated incompetent does not by itself revoke your Power of Attorney for Health Care, though for good cause a court may revoke it and invalidate the instrument, or narrow your agent’s authority.

Making sure it is found

Wisconsin does not run a statewide registry for either document. What it offers instead is an optional filing: you, or someone you authorize, may file either the Declaration or the Power of Attorney for Health Care, for a fee, with the register in probate in the county where you live. Filing is never required, and it is no substitute for handing out copies.

Give a copy of each document to your health care agent, your physician, and the hospital you are most likely to use. A living will or power of attorney signed validly in another state is honored in Wisconsin too, if it complied with that state’s law or with Wisconsin’s own requirements.

This is not a POLST

Wisconsin’s medical-orders program is generally known as POST, Provider Orders for Scope of Treatment. It works differently from either of your advance directive documents: a clinician signs it together with you once you are already facing a serious illness, based on your condition right now, and it is meant to travel with you between hospital, nursing facility, and home as a standing medical order. A Declaration and a Power of Attorney for Health Care, by contrast, are something you put in place while you are well, for a future you cannot yet see. Myend prepares the Declaration and the Power of Attorney for Health Care. It does not, and cannot, produce a POST order or any other clinician-signed medical order, because that has to come from your own treating clinician.

What is different about Wisconsin

Wisconsin gives its two documents nearly the same signing rule, then lets them disagree completely about pregnancy.

Missouri splits its two documents the opposite way, witnesses only for the Declaration and a notary only for the Durable Power of Attorney for Health Care. Wisconsin does not split them at all: the Declaration to Health Care Professionals and the Power of Attorney for Health Care both ask for exactly two witnesses and never a notary, which makes the two papers easier to keep straight, right up until pregnancy comes up. The Declaration is suspended outright, with no exception, from the moment your attending health care professional diagnoses the pregnancy. The Power of Attorney for Health Care hands the decision to you instead, through a checkbox, and if you leave that checkbox blank, Wisconsin’s default answer is no: your agent cannot decide for you while you are pregnant.

Wisconsin also spells out what happens when its two documents disagree about anything else: the Power of Attorney for Health Care supersedes any directly conflicting provision of the Declaration. And since 2023, both documents can be signed remotely over two-way video, as long as a Wisconsin attorney supervises the appearance and signs a notarized affidavit saying so. That is an unusually specific accommodation for a state that otherwise keeps its signing rules simple.

Common questions

Sources and review