Changes to Wisconsin Law Allow Physician Assistants and Nurse Practitioners to Make Findings of Incapacity

What’s New?

If an individual is incapacitated and has a Living Will or Power of Attorney for Health Care (“POA”), a certification of incapacity needs to be signed before those documents can be activated. Previously, this certification was only effective if signed by either two physicians or one physician and one psychologist, both of whom had examined the patient and determined the patient to be incapacitated. While two physicians or a physician and a psychologist may still make a certification of incapacity, the new law also allows for one physician and one physician assistant (“PA”) or nurse practitioner (“APRN”) to make this determination, if the PA or ARPN has sufficient education, training and experience to make that determination.

Changes to the law also allow for qualified attending PAs or APRNs to issue do-not-resuscitate orders and to certify that a patient is afflicted with a terminal condition or is in a persistent vegetative state, which previously could only be done by attending physicians.

Why the Change?

These changes, endorsed by the Wisconsin Hospital Association, Wisconsin Nurses Association, and others, were intended to allow for flexibility for those communities in Wisconsin with physician shortages, where PAs and APRNs must be relied on more heavily to perform duties previously fulfilled only by physicians. Rep. Patrick Snyder, in his testimony in support of this bill, stated: “Several communities in Wisconsin depend solely on [PAs and APRNs] for their care, because the closest physicians are many miles away. For these communities, and others that rely heavily on advanced practice providers, this legislation will allow for a continuity of care that currently is prohibited under state law.”

Likewise, the Nurse Practitioner Forum of the Wisconsin Nurses Association stated in its testimony: “This legislation … would allow nurse practitioners to provide continued care to many patients that we had developed a relationship with, when these patients are in a vulnerable health state. This legislation would improve access to care especially in rural and underserved areas, where many times there is only one physician present, and it becomes difficult to find access to another physician to complete the incapacity process.”

So Everyone Likes the Changes?

No. Concerns about the change were voiced by the Elder Law and Special Needs Section and Real Property, Probate & Trust Law Section of the State Bar of Wisconsin. These groups noted, in their testimony opposing the bill, that the changes “could result in the improper activation of an individual’s POA or Living Will, which could [do] irreparable harm to the individual.” They specifically expressed the concern that “an APRN or PA may not feel free to make a decision under the POA or Living Will that is contrary to the decision made by the physician with whom such APRN or PA is either supervised by or works with in a health care setting.”

The Wisconsin Medical Society specifically opposed the change allowing PAs and APRNs to make certifications of terminal conditions or persistent vegetative states. It noted in its testimony: “Physicians are almost exclusively the only ones who can accurately interpret the information utilized to determine a terminal condition or a persistent vegetative state for appropriate patient care. These determinations require careful, specific examinations and ancillary testing through the use of electroencephalograms (EEGs), evoked potentials, or other specialized scans; which often can’t be interpreted and contextualized by advanced practice clinicians.”

What Does This Mean for My Advanced Care Directive?

If you currently have a Living Will and/or POA in place, it likely states that it can only be activated by two physicians or a physician and a psychologist. This new law will not change the language of your current document, which can still only be activated by two physicians or a physician and a psychologist. If you want a PA or APRN (along with a physician) to be able to activate your Living Will and/or POA, you will need to execute a new one with updated language.

Moving forward, when individuals sign new Living Wills and/or POAs, they will technically have the ability to choose whether they want PAs and APRNs to be included as providers able to make a finding of incapacity. Note, however, that the new statutory forms will likely state that PAs and APRNs would have this ability, so if that doesn’t match an individual’s wishes, they will likely need a different document drafted by an attorney rather than use the statutory form. Individuals should give careful consideration as to what they believe would be appropriate given their individual circumstances.

If you have questions about how these changes affect your estate planning, please contact Jon L. Fischer at 920-257-2219 or [email protected].

If you are a health care provider, and you have questions about how these changes affect your practice, please contact Lora L. Zimmer at 920-257-2214 or [email protected].


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Jon L. Fischer

Estate Planning and Elder Law Attorney at McCarty Law LLP
Jon focuses his practice on estate planning, probate matters, and Medicaid planning as he aims to help clients in their time of need.