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Heather Jones

If you have ever thought about getting some estate planning done or discussed your end-of-life wishes with a family member or friend, there is a chance that you have thought about what is commonly referred to as a “living will.” While the formal name for this legal document can vary from state to state, the living will in Wisconsin is referred to as a “declaration to physicians.”  


The declaration in Wisconsin is not undergoing any changes in 2023, so you can rely on the same laws that govern Wisconsin living wills now. A living will is an essential legal document in a Wisconsin estate plan that any adult should strongly consider having. Read on to find out more about living wills in Wisconsin in 2023.  


What Is A Living Will?


A living will is a legal document that instructs your family, friends, and healthcare providers on what your wishes are if you ever find yourself on life support and unable to communicate your wishes regarding continuing care. Typically, a living will is one of two legal documents that form something referred to as “advance directives.”  


Sometimes, because of the title, people wonder what the difference is between a living trust and a living will. While both documents are used in estate planning, they are entirely different. A trust is a legal instrument that can be custom designed to hold and distribute property and avoid the probate process. A living will does not hold or distribute property; it is a set of instructions.  

Living Will Declaration


Advance Directives


Advance directives are the living will and the healthcare power of attorney. These documents handle most possible scenarios where you need medical treatment or a medical decision made on your behalf. Still, your healthcare provider cannot simply ask you what you want to do. While selecting a healthcare power of attorney is a topic for another article, it is recommended that you have both advance directives in place and update them if you ever have a significant life event like marriage, children, or a change in your spiritual or religious beliefs.  


The living will, or declaration to physicians, will instruct if you are to be kept on life support if you are diagnosed as being in a persistent vegetative state or if your condition is terminal. The Wisconsin living will can select if you want assistance with breathing, dialysis, and having your heartbeat assisted. The Wisconsin living will cannot tell your doctor to administer or withhold certain medications.  


How to Complete the Living Will


You will need to complete the living will and sign it in front of two witnesses for the living will to be valid. You cannot have a relative through blood, marriage, or adoption serve as a witness to your will. You cannot select as a witness anyone who would be entitled to a portion of your estate if you pass away. You cannot ask anyone who works for your doctor to serve as a witness to your living will. You cannot ask anyone who is financially responsible for your health care to serve as a witness to your living will. Finally, you cannot ask anyone who works at the hospital you have been admitted to serve as a witness to your living will unless they are a social worker or a chaplain.  


Estate Planning


Ideally, you will have completed your living will as a part of your estate planning process and can ask either people who work at your estate lawyer’s office to serve as witnesses or you can ask a friend in advance to serve as a witness. The idea behind this is that the witnesses will be as uninvolved with your health care and finances as possible to avoid accusations of bias or issues with following the instructions in the living will.  For more general information regarding estate planning in Wisconsin read our article, Wisconsin Estate Planning Law Changes for 2023.


What To Do With The Living Will


Once your living will is signed and witnessed, you will want to keep it in a safe place where you can access it when you want it. You should keep a list of who you give copies of your living will to so that if, at some point, you decide to change the living will, you can destroy the copies of the previous version, also to avoid any confusion or dissent when the living will becomes necessary to follow.  


You should ensure that your doctor has a copy of your most up-to-date living will and if you go into a hospital, make sure you or someone you trust provides the hospital with a copy of your living will. In Wisconsin, a copy of the living will is as effective as the original.  


When Does A Living Will Go Into Effect?


Unlike some legal documents, a living will only becomes “effective” under certain circumstances. If you are in the hospital and receiving care for serious injury or illness and the topic of life support comes up, then the living will becomes an issue. The law of the state of Wisconsin requires that the doctor and hospital be aware of the living will. Then two physicians will need to examine you, and both will have to sign off that you are in a persistent vegetative state or have a terminal condition. Once the two physicians sign off on your condition, the living will become effective. If a doctor refuses to honor the wishes expressed in the living will, they run the risk of being charged with professional misconduct.  

Older Couple holding hands and walking


What If You Change Your Mind?


You can alter or destroy your living will at any time; the power resides solely with you. You will need to create a written statement revoking your living will and notify your doctor that you have revoked your living will. Get back copies of the living will you have distributed and destroy them. Make sure you consult your list of people who have copies of your living will and get the document back from them to be destroyed.  


Other Specifications


The Wisconsin Declaration to Physicians also includes language about whether or not feeding tubes should be used and special instructions for pregnant women. The feeding tubes issue can be sidestepped by the attending physicians if they believe, in their professional opinion, that withholding feeding tubes would cause the patient pain.  


The best time to put together a living will is before you think you may need one. A living will is an excellent part of a well-rounded estate plan. When it comes to estate planning, you should do it early and update it as necessary. If you want to learn more about living wills in Wisconsin or want to start your estate planning, feel free to give O’Flaherty Law a call; we would be happy to help you.  

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

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