09/24/2026
Legal update: Wisconsin Has a New “Next-of-Kin” Law — But You Still Need Powers of Attorney
Wisconsin recently enacted 2025 Wisconsin Act 115, a new law that may help families when a loved one becomes incapacitated without having a Health Care Power of Attorney in place.
Effective June 1, 2026, the law creates a new “patient’s representative” who, in certain circumstances, may consent to the transfer of an incapacitated hospital patient to a skilled nursing facility or community-based residential facility and make certain decisions on that person’s behalf — without first having to obtain a court-appointed guardian.
But the scope of this new law is important.
Act 115 does not create a general Wisconsin “next-of-kin” law allowing family members to automatically make health care decisions whenever a loved one becomes incapacitated.
Instead, the new patient’s representative process begins in a very specific situation: an incapacitated individual is a hospital inpatient, does not have a valid Health Care Power of Attorney or guardian of the person, and needs to be discharged directly to a skilled nursing facility or community-based residential facility.
Once the patient is admitted to that facility, the patient’s representative may make health care decisions regarding the patient’s admission, care, and treatment to the same extent as a guardian of the person. The representative also has certain authority to authorize expenditures related to the patient’s health care.
What about medical decisions outside of that situation?
This is an important limitation. A patient’s representative cannot use Act 115 to make other medical decisions for the patient while the patient remains in the hospital. The representative’s health care decision-making authority applies at the post-inpatient care facility.
So, for example, if an incapacitated person without a valid Health Care Power of Attorney needs someone to make broader medical decisions while hospitalized — such as consenting to surgery or making significant treatment or end-of-life decisions — Act 115 does not simply give a spouse or other family member that authority. Depending upon the circumstances, the family may still need to seek a court-appointed guardianship.
Likewise, if the individual is later discharged home and remains unable to make his or her own health care decisions, the patient’s representative’s authority does not continue. A guardianship may again be necessary.
That’s why we recommend having BOTH a Health Care Power of Attorney and a Financial Power of Attorney.
A Health Care Power of Attorney allows you to choose the person you trust to make health care decisions for you if you become unable to make those decisions yourself. It provides a decision-maker for your health care generally rather than relying on whether your particular circumstances happen to qualify for Act 115.
A Financial Power of Attorney allows you to choose an agent and give that person authority to handle the financial and property matters specified in your document. Depending upon the authority granted, that may include managing bank accounts, paying bills, handling real estate, dealing with insurance and government benefits, and taking other financial actions on your behalf.
These documents serve different purposes, and having one does not replace the need for the other. Act 115 does not provide the same broad financial authority that can be granted through a properly drafted Financial Power of Attorney.
Act 115 is also temporary.
The law contains a three-year sunset provision. Beginning June 1, 2029, no new patients may be admitted to post-inpatient care through this alternative patient’s representative process unless the Legislature takes further action.
The takeaway: Act 115 provides an important new safety net for Wisconsin families facing a particular hospital-discharge situation, but it is not a substitute for comprehensive incapacity planning.
Having properly prepared Health Care and Financial Powers of Attorney allows you to choose who will act for you and gives those individuals appropriate legal authority. It can also help your family avoid having to rely on a limited and temporary statutory alternative — or potentially having to go to court for a guardianship — if you become incapacitated.
For an excellent explanation of Wisconsin’s new law, including who can serve as a patient’s representative, when the law applies, what decisions a representative can make, and its limitations, see this FAQ from the Wisconsin Guardianship Support Center at the Greater Wisconsin Agency on Aging Resources (GWAAR):
👉 https://gwaar.org/api/cms/viewFile/id/2009009
If it has been a while since you reviewed your estate plan, this is a great reminder to make sure both of your Powers of Attorney are current and still name the people you trust.
