Most generic health care powers of attorney follow Wisconsin’s default rule, which states that your agent’s authority doesn’t “activate” until two medical professionals personally examine you and sign statements confirming that you cannot make your own medical decisions.

Sometimes, this will be precisely what you want, because it prevents someone from making life-changing medical decisions for you while you might still be capable of making them for yourself. Under these circumstances, Wisconsin’s default law effectively protects your autonomy.

In practice, though, you are usually very close to that “someone” you’ve carefully selected to make decisions for you. Actually, you already trust them with your life. So you do not need the default law’s primary benefit—its protection. But if not, then whatever downside the default rule may harbor is nothing but a liability.

And what is the downside? The bureaucratic obstacle it creates for your protection. This obstacle (requiring physicians to examine you and confirm your incapacity in writing) is just a burdensome hurdle to clear when all you want is for your loved one to act on your behalf with clarity and speed.

The Real-World Problem

Janice, 68, suffers a stroke on Saturday morning. The ER team stabilizes her with emergency treatment, but she remains unable to communicate clearly or understand complex information.

Now the doctors need decisions made about the next steps. She needs surgery to place a feeding tube, and they recommend transferring her to a specialized rehabilitation facility three hours away rather than the local nursing home. There are also decisions to be made about whether Janice wants aggressive rehabilitation care and whether to pursue additional imaging tests that would require sedation.

Tom, her husband of 45 years, has her health care power of attorney and is ready to make these decisions. The hospital’s risk management team, however, is not as eager. They tell Tom that two physicians must certify in writing that Janice is incapacitated before Tom can make any decisions on her behalf.

The attending physician can sign, but finding a second physician willing to examine Janice and complete the paperwork on a Saturday afternoon proves difficult. Everyone seems to be off-site or unavailable, so it’s unclear when this administrative task can be completed. Meanwhile, the rehabilitation facility has an opening now, but may not tomorrow. Decisions about the feeding tube affect her discharge timeline. Tom is stuck in limbo, legally nominated but not legally empowered, watching critical hours tick by.

The Better Way

Fortunately, you don’t have to be like Janice or Tom. Recall that the two-physician requirement is just the default rule—it applies only if you don’t specify otherwise in your document. As stated by Chapter 155 of the Wisconsin Statutes, you can specify that your agent’s authority becomes effective immediately—no future certifications required.

By including immediate activation language, your agent can step in as soon as you are unable to communicate or participate in your own medical decisions. Of course, doctors can be consulted for their medical opinions, but their approval and certification is not required.

When Immediate Activation Makes Sense

The statutory safeguards remain valuable for appointing someone more distant—perhaps a professional fiduciary, a family friend, or a more remote relative. In such cases, the certification requirement provides an extra layer of protection that might be warranted.

If you’re designating your spouse or an adult child—someone who knows you intimately, loves you, and has earned your complete trust—immediate activation almost always makes more sense than the default rule. After all, you’re choosing this person precisely because you trust their judgment and know they’ll honor your wishes. The certification requirement and the delays it can cause do not make your loved ones more trustworthy. But they can make a difficult situation harder.

The Bottom Line

Your health care power of attorney should facilitate your care during an emergency, not create obstacles. Standard forms usually include the default certification requirement. Although most people aren’t aware of it, this requirement can be bypassed, allowing the agent to make decisions immediately.

For most families, choosing immediate activation provides the best balance between safeguarding autonomy and enabling an agent to respond quickly when necessary.