Citation Numbers: 77 Op. Att'y Gen. 156
Judges: DONALD J. HANAWAY, Attorney General
Filed Date: 8/5/1988
Status: Precedential
Modified Date: 7/6/2016
MARK HAZELBAKER, Corporation Counsel Manitowoc County
You have asked whether a person's attorney-in-fact, relying on a durable power of attorney, may lawfully consent to placement of the person in a nursing home or consent to the provision of medical services to that person. I conclude that a durable power of attorney cannot be used to place someone in a nursing home but that it can be used to specifically delegate to another the ability to make medical decisions.
As you note in your request, a power of attorney simply describes the common-law relationship of principal and agent. Under the common law, the agency relationship automatically terminated when the principal died or became legally incompetent. 2A C.J.S. Agency § 135, 141 (1972). The Legislature changed that common law principle when it adopted the Durable Power of Attorney Act, section
The power of attorney in section
The Legislature created section
was to recognize a form of senility insurance comparable to that available to relatively wealthy persons who use funded, revocable trusts for persons who are unwilling or unable to transfer assets as required to establish a trust.
. . . .
. . . The general purpose of the act is to alter common law rules that created traps for the unwary by voiding powers on the principal's incompetency or death.
Uniform Durable Power of Attorney Act (U.L.A.) prefatory note. A copy of the Uniform Act is the only document in the Legislative Reference Bureau's files on section
The purpose in construing a statute is to ascertain and give effect to the intent of the Legislature. State v. Denter,
"As a general rule, a person may properly appoint an agent to do the same acts and achieve the same legal consequences . . . as if he had acted personally, unless public policy . . . requires personal performance . . . ." 3 Am. Jur. 2d Agency § 20 (1986). Some actions have always been regarded as too personal to delegate to another, for example, voting, taking marriage vows, performing personal service contracts, oath taking and making wills. Note, Appointing An Agent To Make Medical TreatmentChoices, 84 Colum. L. Rev. 985, 1009 (1984). But the public policy reasons behind prohibiting the delegation of oath taking, voting or performing personal service contracts do not apply to medical decisions. Some people prefer that difficult medical decisions be made by family physicians or other family members, perhaps in the realization that those individuals will decide the best course of treatment rather than the easiest course of treatment. Indeed, when the person is incapacitated, for example, unconscious, a personal decision is impossible and the *Page 158 physician must resort to an informal or ad hoc power of attorney by consulting with the patient's next of kin.
I conclude, therefore, that medical decisions can be delegated through a durable power of attorney. A general durable power of attorney, however, is not sufficient to delegate medical decision making. The rule is that a power of attorney must be strictly construed and that the instrument granting the power of attorney will be held to grant only those powers specified. 3 Am. Jur. 2dAgency § 31 (1986). Therefore, an instrument which simply appoints someone an attorney-in-fact, or simply grants a general power of attorney, is not sufficient to delegate medical decision making. That delegation must be specific if it is to be effective.
A delegation of authority to make medical decisions, however, cannot be construed to allow the agent to make decisions which would otherwise be controlled under chapter 880, the guardianship law, or chapter 55, Wisconsin's Protective Services Act. Section
Interpreting the durable power of attorney statute to permit the attorney-in-fact to place the principal in a nursing home is inconsistent with the protective placement statutes in chapter 55. A guardian may not, on his or her own authority, place a ward in a nursing home except on a very short term basis. Sec.
The Durable Power of Attorney Act only permits the principal to nominate a guardian. If the act were interpreted as allowing the attorney-in-fact to make placement decisions, the power to nominate would be surplusage since the attorney-in-fact could make those decisions without court appointment. I must conclude, therefore, that although a durable power of attorney may include the specific authority to make medical decisions, it cannot supplant and cannot be used to avoid the requirements of chapters 880 or 55 in order to place the principal in a nursing home.
DJH:AL *Page 160