Wis. Stat. § 154.03

Current through Acts 2023-2024, ch. 272

Section 154.03 - Declaration to health care professionals

(1) Any person of sound mind and 18 years of age or older may at any time voluntarily execute a declaration, which shall take effect on the date of execution, authorizing the withholding or withdrawal of life-sustaining procedures or of feeding tubes when the person is in a terminal condition or is in a persistent vegetative state. A declarant may not authorize the withholding or withdrawal of any medication, life-sustaining procedure or feeding tube if the declarant's attending health care professional advises that, in his or her professional judgment, the withholding or withdrawal will cause the declarant pain or reduce the declarant's comfort and the pain or discomfort cannot be alleviated through pain relief measures. A declarant may not authorize the withholding or withdrawal of nutrition or hydration that is administered or otherwise received by the declarant through means other than a feeding tube unless the declarant's attending health care professional advises that, in his or her professional judgment, the administration is medically contraindicated. A declaration must be signed by the declarant in the presence of 2 witnesses. If the declarant is physically unable to sign a declaration, the declaration must be signed in the declarant's name by one of the witnesses or some other person at the declarant's express direction and in his or her presence; such a proxy signing shall either take place or be acknowledged by the declarant in the presence of 2 witnesses. The declarant is responsible for notifying his or her attending health care professional of the existence of the declaration. An attending health care professional who is so notified shall make the declaration a part of the declarant's medical records. No witness to the execution of the declaration may, at the time of the execution, be any of the following:

(a) Related to the declarant by blood, marriage or adoption.

(b) Have knowledge that he or she is entitled to or has a claim on any portion of the declarant's estate.

(c) Directly financially responsible for the declarant's health care.

(d) An individual who is a health care provider, as defined in s. 155.01 (7), who is serving the declarant at the time of execution, an employee, other than a chaplain or a social worker, of the health care provider or an employee, other than a chaplain or a social worker, of an inpatient health care facility in which the declarant is a patient.

(e) Under the age of 18.

(2) The department shall prepare and provide copies of the declaration and accompanying information for distribution in quantities to persons licensed, certified, or registered under ch. 441, 448, or 455, persons who hold a compact privilege under subch. XI of ch. 448, hospitals, nursing homes, county clerks and local bar associations and individually to private persons. The department shall include, in information accompanying the declaration, at least the statutory definitions of terms used in the declaration, statutory restrictions on who may be witnesses to a valid declaration, a statement explaining that valid witnesses acting in good faith are statutorily immune from civil or criminal liability, an instruction to potential declarants to read and understand the information before completing the declaration and a statement explaining that an instrument may, but need not be, filed with the register in probate of the declarant's county of residence. The department may charge a reasonable fee for the cost of preparation and distribution. The declaration distributed by the department of health services shall be easy to read, the type size may be no smaller than 10 point, and the declaration shall be in the following form, setting forth on the first page the wording before the ATTENTION statement and setting forth on the 2nd page the ATTENTION statement and remaining wording:

DECLARATION TO HEALTH CARE PROFESSIONALS

(WISCONSIN LIVING WILL)

I,...., being of sound mind, voluntarily state my desire that my dying not be prolonged under the circumstances specified in this document. Under those circumstances, I direct that I be permitted to die naturally. If I am unable to give directions regarding the use of life-sustaining procedures or feeding tubes, I intend that my family and physician, physician assistant, or advanced practice registered nurse honor this document as the final expression of my legal right to refuse medical or surgical treatment.

1. If I have a TERMINAL CONDITION, as determined by a physician, physician assistant, or advanced practice registered nurse who has personally examined me, and if a physician who has also personally examined me agrees with that determination, I do not want my dying to be artificially prolonged and I do not want life-sustaining procedures to be used. In addition, the following are my directions regarding the use of feeding tubes:

.... YES, I want feeding tubes used if I have a terminal condition.

.... NO, I do not want feeding tubes used if I have a terminal condition.

If you have not checked either box, feeding tubes will be used.

2. If I am in a PERSISTENT VEGETATIVE STATE, as determined by a physician, physician assistant, or advanced practice registered nurse who has personally examined me, and if a physician who has also personally examined me agrees with that determination, the following are my directions regarding the use of life-sustaining procedures:

.... YES, I want life-sustaining procedures used if I am in a persistent vegetative state.

.... NO, I do not want life-sustaining procedures used if I am in a persistent vegetative state.

If you have not checked either box, life-sustaining procedures will be used.

3. If I am in a PERSISTENT VEGETATIVE STATE, as determined by a physician, physician assistant, or advanced practice registered nurse who has personally examined me, and if a physician who has also personally examined me agrees with that determination, the following are my directions regarding the use of feeding tubes:

.... YES, I want feeding tubes used if I am in a persistent vegetative state.

.... NO, I do not want feeding tubes used if I am in a persistent vegetative state.

If you have not checked either box, feeding tubes will be used.

If you are interested in more information about the significant terms used in this document, see section 154.01 of the Wisconsin Statutes or the information accompanying this document.

ATTENTION: You and the 2 witnesses must sign the document at the same time.

Signed .... Date ....

Address .... Date of birth ....

I believe that the person signing this document is of sound mind. I am an adult and am not related to the person signing this document by blood, marriage or adoption. I am not entitled to and do not have a claim on any portion of the person's estate and am not otherwise restricted by law from being a witness.

Witness signature .... Date signed ....

Print name ....

Witness signature .... Date signed ....

Print name ....

DIRECTIVES TO ATTENDING PHYSICIAN, PHYSICIAN ASSISTANT, OR ADVANCED PRACTICE REGISTERED NURSE

1. This document authorizes the withholding or withdrawal of life-sustaining procedures or of feeding tubes when a physician and another physician, physician assistant, or advanced practice registered nurse, one of whom is the attending health care professional, have personally examined and certified in writing that the patient has a terminal condition or is in a persistent vegetative state.

2. The choices in this document were made by a competent adult. Under the law, the patient's stated desires must be followed unless you believe that withholding or withdrawing life-sustaining procedures or feeding tubes would cause the patient pain or reduced comfort and that the pain or discomfort cannot be alleviated through pain relief measures. If the patient's stated desires are that life-sustaining procedures or feeding tubes be used, this directive must be followed.

3. If you feel that you cannot comply with this document, you must make a good faith attempt to transfer the patient to another physician, physician assistant, or advanced practice registered nurse who will comply. Refusal or failure to make a good faith attempt to do so constitutes unprofessional conduct.

4. If you know that the patient is pregnant, this document has no effect during her pregnancy.

* * * * *

The person making this living will may use the following space to record the names of those individuals and health care providers to whom he or she has given copies of this document:

.................................................................

(3) For purposes of this section, "presence" includes the simultaneous remote appearance by 2-way, real-time audiovisual communication technology if all of the following conditions are satisfied:

(a) The signing is supervised by an attorney in good standing licensed by this state. The supervising attorney may serve as one of the remote witnesses.

(b) The declarant attests to being physically located in this state during the 2-way, real-time audiovisual communication.

(c) Each remote witness attests to being physically located in this state during the 2-way, real-time audiovisual communication.

(d) The declarant and each of the remote witnesses identify themselves. If the declarant and remote witnesses are not personally known to each other and to the supervising attorney, the declarant and each of the remote witnesses display photo identification.

(e) The declarant identifies anyone else present in the same physical location as the declarant and, if possible, the declarant makes a visual sweep of the declarant's physical surroundings so that the supervising attorney and each remote witness can confirm the presence of any other person.

(f) The declarant displays the declaration to health care professionals, confirms the total number of pages and the page number of the page on which the declarant's signature will be affixed, and declares to the remote witnesses and the supervising attorney all of the following:

1. That the declarant is 18 years of age or older.

2. That the document is a declaration to health care professionals.

3. That the document is being executed as a voluntary act.

(g) The declarant, or an individual 18 years of age or older at the express direction and in the physical presence of the declarant, dates and signs the declaration to health care professionals in a manner that allows each of the remote witnesses and the supervising attorney to see the execution.

(h) The audiovisual communication technology used allows communication by which a person is able to see, hear, and communicate in an interactive way with another person in real time using electronic means, except that if the declarant, a remote witness, or the supervising attorney has an impairment that affects hearing, sight, or speech, assistive technology or learned skills may be substituted for audio or visual if it allows that person to actively participate in the signing in real time.

(i) The declaration to health care professionals indicates that it is being executed pursuant to this subsection.

(j) One of the following occurs:

1. The declarant, or another person at the direction of the declarant, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original declaration to health care professionals to the supervising attorney within a reasonable time after execution. The supervising attorney then personally delivers or transmits by U.S. mail or commercial courier service the entire signed original declaration to health care professionals to the remote witnesses within a reasonable time. The first remote witness to receive the original declaration to health care professionals signs and dates the original declaration to health care professionals as a witness and forwards the entire signed original declaration to health care professionals by personal delivery or U.S. mail or commercial courier service within a reasonable time to the 2nd remote witness, who signs and dates it as a witness and forwards the entire signed original declaration to health care professionals by personal delivery or U.S. mail or commercial courier service within a reasonable time to the supervising attorney.

2. The declarant, or another person at the direction of the declarant, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original declaration to health care professionals to the supervising attorney within a reasonable time after execution, and transmits by facsimile or electronic means a legible copy of the entire signed declaration to health care professionals directly to each remote witness within a reasonable time after execution. Each remote witness then signs the transmitted copy of the declaration to health care professionals as a witness and personally delivers or transmits by U.S. mail or commercial courier service the entire signed copy of the declaration to health care professionals to the supervising attorney within a reasonable time after witnessing. The signed original and signed copies together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving the signed original and signed copies, compiles the signed original and signed copies into one document by attaching the signature pages of each remote witness to the original signed by or on behalf of the declarant, in which case the compiled document shall constitute the original.

3. The declarant and each of the remote witnesses sign identical copies of the original. The declarant, or another person at the direction of the declarant, and each of the remote witnesses personally deliver or transmit by U.S. mail or commercial courier service the signed originals to the supervising attorney within a reasonable time after execution. All of the signed originals together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving all signed originals, compiles the originals into one document by attaching the signature pages of each remote witness to the original signed by or on behalf of the declarant, in which case the compiled document shall constitute the original.

(k) The supervising attorney completes an affidavit of compliance that contains the following information:

1. The name and residential address of the declarant.

2. The name and residential or business address of each remote witness.

3. The address within this state where the declarant was physically located at the time the declarant signed the declaration to health care professionals.

4. The address within this state where each remote witness was physically located at the time the remote witness witnessed the declarant's execution of the declaration to health care professionals.

5. A statement that the declarant and remote witnesses were all known to each other and the supervising attorney or a description of the form of photo identification used to confirm the identity of the declarant and each remote witness.

6. Confirmation that the declarant declared that the declarant is 18 years of age or older, that the document is the declarant's declaration to health care professionals, and that the document was being executed as the declarant's voluntary act.

7. Confirmation that each of the remote witnesses and the supervising attorney were able to see the declarant, or an individual 18 years of age or older at the express direction and in the physical presence of the declarant, sign, and that the declarant appeared to be 18 years of age or older and acting voluntarily.

8. A description of the audiovisual technology used for the signing process.

9. If the declaration to health care professionals was not signed in counterpart, a description of the method used to forward the declaration to health care professionals to each remote witness for signing and to the supervising attorney after signing.

10. If the declaration to health care professionals was signed in counterpart, a description of the method used to forward each counterpart to the supervising attorney and, if applicable, how and when the supervising attorney physically compiled the signed paper counterparts into a single document containing the declaration to health care professionals, the signature of the declarant, and the signatures of the remote witnesses.

11. The name, state bar number, and business or residential address of the supervising attorney.

12. Any other information that the supervising attorney considers to be material with respect to the declarant's capacity to sign a valid declaration to health care professionals, the declarant's and witnesses' compliance with this section, or any other information that the supervising attorney deems relevant to the execution of the declaration to health care professionals.

(l) The affidavit of compliance is attached to the declaration to health care professionals.

(m) An affidavit of compliance described in this subsection shall be substantially in the following form:

AFFIDAVIT OF COMPLIANCE

State of ....

County of ....

The undersigned, being first duly sworn under oath, states as follows:

This Affidavit of Compliance is executed pursuant to Wis. Stat. § 154.03 (3) to document the execution of the declaration to health care professionals of [name of declarant] via remote appearance by 2-way, real-time audiovisual communication technology on [date].

1. The name and residential address of the declarant is ....

2. The name and [residential or business] address of remote witness 1 is ....

3. The name and [residential or business] address of remote witness 2 is ....

4. The address within the state of Wisconsin where the declarant was physically located at the time the declarant signed the declaration to health care professionals is ....

5. The address within the state of Wisconsin where remote witness 1 was physically located at the time the remote witness witnessed the declarant's execution of the declaration to health care professionals is ....

6. The address within the state of Wisconsin where remote witness 2 was physically located at the time the remote witness witnessed the declarant's execution of the declaration to health care professionals is ....

7. The declarant and remote witnesses were all known to each other and to the supervising attorney. - OR - The declarant and remote witnesses were not all known to each other and to the supervising attorney. Each produced the following form of photo identification to confirm his or her identity:

....

8. The declarant declared that the declarant is 18 years of age or older, that the document is the declarant's declaration to health care professionals, and that the document was being executed as the declarant's voluntary act.

9. Each of the remote witnesses and the supervising attorney were able to see the declarant sign. The declarant appeared to be 18 years of age or older and acting voluntarily.

10. The audiovisual technology used for the signing process was ....

11. The declaration to health care professionals was not signed in counterpart. The following methods were used to forward the declaration to health care professionals to each remote witness for signing and to the supervising attorney after signing. - OR - The declaration to health care professionals was signed in counterpart. The following methods were used to forward each counterpart to the supervising attorney. [If applicable] - The supervising attorney physically compiled the signed paper counterparts into a single document containing the declaration to health care professionals, the signature of the declarant, and the signatures of the remote witnesses on [date] by [e.g., attaching page 7 from each counterpart signed by a remote witness to the back of the declaration to health care professionals signed by the declarant].

12. The name, state bar number, and [business or residential] address of the supervising attorney is ....

13. [Optional] Other information that the supervising attorney considers to be material is as follows: ....

.... (signature of supervising attorney)

Subscribed and sworn to before me on .... (date) by .... (name of supervising attorney).

.... (signature of notarial officer)

Stamp

.... (Title of office)

[My commission expires: ....]

Wis. Stat. § 154.03

Amended by Acts 2023 ch, 130,s 3, eff. 3/23/2024.

Amended by Acts 2023 ch, 130,s 2, eff. 3/23/2024.

Amended by Acts 2021 ch, 23,s 25, eff. 4/1/2022.

Amended by Acts 2019 ch, 90,s 12, eff. 2/7/2020.

Amended by Acts 2019 ch, 90,s 11, eff. 2/7/2020.

Amended by Acts 2019 ch, 90,s 10, eff. 2/7/2020.

1983 a. 202; 1985 a. 199; 1991 a. 84, 281; 1995 a. 27 s. 9126 (19); 1995 a. 168; 2007 a. 20 s. 9121 (6) (a).

Planning Ahead for Incapacity. Shapiro. Wis. Law. Aug. 1991. Wisconsin's New Living Will Act. Gilbert. Wis. Law. March 1992.