What does it mean to be “incapacitated?”

My dad’s doctor said my dad is incompetent and now I am his decision maker.

Incapacity and incompetency are two different terms that are, confusingly, used interchangeably.  Incapacity is a medical term.  Incompetency is a legal term.  In Wisconsin, adults are presumed competent until a judge (and only a judge) determines that person is incompetent. 

“Incapacity” means the inability to receive and evaluate information effectively or to communicate decisions to such an extent that the individual lacks the capacity to manage his or her health care decisions. 

Wisconsin is not a “next of kin” or “family consent” state.  This means that if you want someone else to make decisions for you, you must grant someone else that power, either through a Power of Attorney or, if you cannot do that, then through a court process (either conservatorship or guardianship). 

If you have signed a Health Care Power of Attorney document, signed by yourself and two witnesses who are not related to you and who are not your medical providers, then you have named a Health Care Agent.  This person does not have any authority to make decisions for you until two doctors (or a doctor and another advance practice clinician) have examined you and determine that you can no longer make health care decisions for yourself.  They will sign a statement of incapacity.  At this time, your health care power of attorney is deemed “activated.”  There will be a note or flag on your electronic health record noting this “activation” and now your Agent will make health care decisions for you. 

It is important to note that your Agent should still act according to your wishes, and they are limited to health care decisions.  “Health care” typically does not include who can visit you in the hospital, who you talk to on the phone, or what you eat (unless of course your doctor has given those instructions).