Wisconsin’s New Next-of-Kin Decision Making Act Makes Health Care Power of Attorney Documents All the More Important

Don’t let Wisconsin’s new Next-of-Kin Decision Making Act lull you into a false sense of security.  Not only does it only apply in narrow circumstances, it could also give someone power over you who you would NEVER want to make health care decisions for you.  Having up to date power of attorney documents is the best way to avoid unintended consequences, AND you must ensure your primary physicians actually have copies of your current power of attorney for health care documents on file.

What happened?

2025 Wisconsin Act 115 (the “Act”) takes effect June 1, 2026.  The Act permits hospitals to select and allow the next-of-kin of an incapacitated individual (who does not have power of attorney for health care documents) to consent to the transfer and admission to a nursing facility or community based residential facility directly from an inpatient hospital admission.  It also allows the person selected by the hospital to make health care decisions for the incapacitated individual while they are in the facility. 

Who does the hospital choose from?

Hospitals can select a decisionmaker based on a hierarchical list of individuals in the following order of priority:

• Spouse or domestic partner;
• Adult child;
• Parent;
• Sibling;
• Grandparent; or
• Close friend.

Who does this impact?

The next-of-kin decision making aspects of the Act only impact incapacitated individuals who do not have valid power of attorney for health care documents and need to be transferred from a hospital to a facility. 

However, if the hospital cannot immediately locate your power of attorney for health care documents, a decisionmaker could be appointed in an emergency situation before the power of attorney documents for health care are found.

How long does the decision-making authority last?

The decisionmaker may make health care decisions for the incapacitated individual until any of the following occurs.

• A court appoints a guardian for the incapacitated individual;
• The incapacitated individual is discharged to a setting that is not a qualified facility;
• Power of attorney for health care documents are identified that were not identified at the time the decisionmaker was appointed; or
• The individual is determined to no longer be incapacitated.

Why was the Act passed?

The Act aims to reduce delays in moving incapacitated individuals from a hospital to a facility without requiring a petition for guardianship by allowing hospitals to rely on next-of-kin decisionmakers when an incapacitated individual has not designated an agent in a power of attorney for health care.  

Does this mean powers of attorney for health care aren’t as important?

The Act should not be relied on as a substitute for having power of attorney for health care documents because it does not apply to all circumstances or health care decisions.

What do the critics say?

Critics of the Act have expressed concerns that the Act does not go far enough to provide the incapacitated individual with the same protection they would receive if guardianship and protective placement petitions were required to be filed prior to transferring the individual to a facility.

Are there other important changes made by the Act?

The Act also includes a change to who can determine incapacity.  Previously, either two physicians or one physician and one psychologist were required to declare someone incapacitated. Under the Act, a person can now be declared incapacitated by either two physicians or one physician and one psychologist, registered nurse, or physician’s assistant.

Conclusion:

The Act will help hospitals move patients to nursing facilities more quickly and easily.  However, it does not eliminate the importance of having power of attorney documents.  In fact, documents are all the more important to avoid hospitals appointing a decisionmaker you would not want. 

Power of attorney for health care documents should be provided to your primary physicians and the named agents in the documents ahead of time to avoid any confusion or delays in an emergency circumstance.  We recommend following up with your physicians regularly to confirm what is on file for your power of attorney for health care in the hospital’s records.