Default Health-Care Surrogate Priority in Wisconsin

At a glance

Requirements one by one

When the limited route opens

The incapacity definition for this route is in § 50.06(1)(c); § 50.06(2) allows a listed person to consent to transfer directly from a hospital to a facility only if the adult lacks a valid health-care power of attorney and has not been adjudicated incompetent in Wisconsin. Under § 50.06(4)(a), two physicians or one physician and one advanced practice clinician must personally examine the patient and sign an incapacity statement. Old age, eccentricity, or physical disability alone do not establish incapacity.

Care and setting covered

The word “facility” in § 50.01(1m) means a nursing home or community-based residential facility. The § 50.06(3) family order begins with consent to admission from a hospital; § 50.06(5) then gives the representative authority to make health-care decisions for the patient at the facility. A separate agent derives authority from a health-care power of attorney under § 155.05(2), and a guardian has only the powers authorized under § 54.25(2)(a), (d).

Family and close-friend order

For this admission, § 50.06(3) lists the spouse or domestic partner, adult child, parent, adult sibling, grandparent, adult grandchild, then an adult close friend. The close friend is a real listed class, but its authority arises through the same hospital-to-facility route.

Decision within a class

Section 50.06(2)(a) prevents an admission if someone at the same or a higher priority disagrees. Under subsection (am), a listed person who lives with the patient also can block the admission, unless the consenting person lives with the patient or is the spouse or domestic partner. This is an objection rule for admission, not a general majority vote for later treatment.

Qualifications and decision limits

Section 50.06(2)(b) excludes a proposed admission when the person is then diagnosed as developmentally disabled or as having a specified mental illness. A protest by the patient triggers prompt county review under subsection (d). In the ordinary petition route, § 50.06(5)(a) ends the representative's authority at 60 days, discharge, or guardian appointment; subsection (6) permits a further 30 days for discharge planning if a guardian has not been appointed.

The declaration route and its cutoff

Under § 50.06(8)(a), a transfer directly from a hospital inpatient unit can proceed without first filing guardianship and protective-placement petitions when the representative signs and distributes the required sworn declaration. It must address the absence or unwillingness of higher-priority family members. Section 50.06(5)(am) ends this route's authority on guardian appointment, discharge to a nonfacility setting, discovery of a health-care POA, or restored capacity. Section 50.06(5)(ar) bars new admissions through this no-petition route after June 1, 2029.

Disputes and court review

The ordinary route requires guardianship and protective-placement petitions before admission (§ 50.06(2)(c)). If the patient protests, the facility must notify the county, whose representatives visit and assess the protest within 72 hours under subsection (d). For the no-petition route, § 50.06(8)(e)1. lets any person seek judicial review of whether the representative follows the patient's known wishes or best interest and uses ordinary prudence.

What trips people up

The listed spouse-to-friend order is easy to read as permission for relatives to consent to any treatment wherever the patient lives. Section 50.06(2) starts with a direct hospital-to-facility admission, and subsection (5) ties the ensuing authority to that admission.

The 2025 declaration route changes the petition timing, not the need for capacity findings or patient protection. Its separate authority and future cutoff are in § 50.06(5)(am), (ar) and (8)(a).

Common questions

Does a patient’s protest automatically prevent admission? Section 50.06(2)(d) allows admission after an objection, but requires immediate county notice and a visit as soon as possible, no later than 72 hours.

Can the adult decide again after recovering capacity? On the no-petition route, § 50.06(5)(am) ends the representative’s authority once the adult is determined no longer incapacitated. Under § 155.05(4), a principal with capacity also overrides a health-care agent.

Can anyone challenge the representative’s conduct? Yes. Section 50.06(8)(e) allows any person, including the county adult-at-risk agency, to seek court review under the new route.

Statutes and sources

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