Next of Kin Law Overview

At the end of the  2025-26 Legislative Session, on the last floor days for both the Assembly and Senate, Assembly Bill 598 passed with significant bi-partisan support and was signed into law by Governor Evers as 2025 Wisconsin Act 115. As AB 598 went through the Legislative process there were a number of amendments to the bill, here is a memo describing those changes. This bill has been commonly referred to as the Next of Kin Bill or (NOK) and has been in the works for nearly four years before passing this session. The provisions in the bill take effect on June 1, 2026, providing time for education about the new process for providers and others who will be involved in these new processes, and providing time for the Department of Health Services to create the required forms for the new processes.

This bill is the result of many compromises, addressing concerns from long-term care provider associations, the Wisconsin Hospital Association (WHA), the Governor and Department of Health Services (DHS), disability and aging advocates, the Counties Association, and legislative stakeholders, to address the issue of unnecessarily long hospital stays for incapacitated patients who do not have healthcare decision makers in place, and to avoid having to go through the lengthy legal process of having a guardian appointed in order to make those decisions.

Under current law an incapacitated patient may be admitted to a long-term care facility for only 60 days without the appointment of a guardian, the appointment of which often takes more than 60 days, and during this time there is no ability for healthcare decisions to be made on their behalf.

What does Act 115 mean to long-term care facilities?

2025 Wisconsin Act 115 creates a new process by which a “patient’s representative” may be designated for someone who is incapacitated, without a healthcare decision-maker, for the purpose of discharging a patient from an inpatient setting and admittance into a skilled nursing facility (SNF) or community-based residential facility (CBRF). Further this patient representative would be able to make healthcare decisions and authorize healthcare expenses on the patient’s behalf, and would be able to apply for Medicaid for the individual.

The incapacitated patient in the in-patient hospital setting needs to be determined to be incapacitated by one physician and one advanced practice clinician who have personally examined the individual and signed a statement indicating that the individual is incapacitated. Importantly, old age, eccentricity, or physical disability are not sufficient to make the finding of incapacitation and neither clinician making the finding may be related to the patient or may have claim to any portion of the patient’s estate. A copy of the statement must be included in the patient’s records both in the hospital, as well as in the long-term care facility that they are admitted to. The statement of incapacity must be done on a form prescribed by the Department of Health Services, and WHCA/WiCAL and WHA will be weighing in with DHS as they develop this form.

In addition to this form being included in the patient’s records in both facilities, a copy of the form must also be sent to the Register in Probate and the adult-at-risk agency in the county of residence within 72 hours following the patient’s admission to the SNF or CBRF. Importantly the adult-at-risk agency is not required to take any action, just to accept and store a copy of the form.

Importantly Act 115 does not require SNFs and CBRFs to accept patients being discharged from the hospital with a patient’s representative in place. Facilities should continue to take care to ensure that their facility is an appropriate setting for any prospective patient from an infrastructure, staffing, and training perspective.

What can patient’s representatives do under the bill?

Under Act 115, the patient’s representative may consent to admission to a SNF or CBRF directly from a hospital, enroll the individual in Medicaid and authorize health care expenditures to the same extent that a guardian may, however if there is a durable power of attorney agent who may authorize health care expenditures, than a patient’s representative may not authorize health care expenditures. Additionally, the patient’s representative may request a functional screening and a financial and cost-sharing screening to determine eligibility for Family Care.

When can the next of kin/patient’s representative consent to admission?

They can consent to admission to a CBRF or SNF only if the following occurs: The individual has been determined to be incapacitated; the individual is admitted directly from the hospital inpatient unit. The patient’s representative signs a declaration under oath and submits the declaration to the discharging hospital, accepting facility, the adult-at-risk agency for the county, the county register in probate, and all of the incapacitated individual’s family members that can reasonable be contacted following the admission.

What is on the form appointing the patient’s representative?

Acknowledgement that they may make healthcare decisions, health care expenditures and apply for Medicaid. That the representative agrees to make health care decisions regarding the admission to and care and treatment at the accepting facility on behalf of the individual, and to authorize expenditures related to the care received at the accepting facility. A statement indicating that to the best of the representative’s knowledge the incapacitated person does not have a health care agent nor a guardian. A statement that the patient does not have an activated power of attorney for healthcare and has not been adjudicated incompetent.  A statement that when acting on the behalf of the patient they agree to exercise the degree of care, diligence, and good faith that a prudent person exercises in their own affairs. A statement that the representative understands their responsibilities as patient representative. That to the best of their knowledge, a family member of a higher priority class does not exist or is unwilling to make health care decisions on behalf of the incapacitated individual. And a list of all of the incapacitated individual’s family members to whom the signed declaration will be sent.

When does a patient’s representative cease to be a decision-maker for the patient?

• A court appoints a guardian.
• The incapacitated individual is discharged to a setting that is not a CBRF or SNF.
• A healthcare power of attorney that was not identified at the time the patient representative was established is identified.
• The incapacitated individual is determined to no-longer be incapacitated.

What protections are in place for facilities accepting residents via this process?

Act 115 specifically states that hospitals discharging a patient and a nursing home accepting an incapacitated individual are in compliance with federal regulations regarding patient’s rights for advance directives and their right to designate a representative.

Additionally, Act 115 contains several other protections for the facility, the providers, and the patient’s representative for acting in good faith:

• No health care facility or provider may be charged with a crime, held civilly liable or found guilty of unprofessional conduct for any of the following:
  • Certifying incapacity if the certification is made in good faith based on a thorough examination of the individual
  • Failing to comply with a decision of a patient’s representative, except if the failure to comply constitutes unprofessional conduct if the professional refuses or fails to make a good faith attempt to transfer to another health care professional who will comply.
  • Complying in the absence of actual knowledge of a limitation or revocation of decision making authority with the decisions of a patient’s representative.
  • Acting contrary to or failing to act pursuant to any orders unless the facility or provider has actual knowledge of the order.
  • Failing to obtain a health care decision for a patient from the patient’s representative if the facility or provider has made a reasonable attempt to contact the representative to obtain a healthcare decision but has been unable to do so.
• In the absence of a notice to the contrary a facility or provider may presume that the representative is authorized to make decisions on behalf of the incapacitated patient if they have provided the signed declaration.
• No patient’s representative may be charged with a crime or held civilly liable for making a decision in good faith in compliance with Act 115, except when the representative has acted in bad faith or had authorized health care expenditures for the benefit of someone other than the incapacitated patient.
• No patient’s representative, other than the spouse, may be held personally liable for any goods or services which expenditure was authorized or contracted for by the representative.

What protections are in place for the incapacitated individual?

Act 115 institutes numerous provisions to protect the incapacitated patient. Including, that a physician or advanced practice physician can make a determination that the patient is no longer incapacitated and file a statement saying as such, this statement would then need to be included in the patient’s health records, the register in probate, and adult-at-risk agency.

This new law allows any person, including the adult-at-risk agency or county corporation counsel may petition the court  to review whether or not the patient’s representative is acting in according to the known wishes and best interests of the incapacitated individual, that they are exercising the degree of care, diligence, and good faith when acting on behalf of the individual.

In response to this petition the court may direct the patient’s representative to act in the best interest of the individual; require the patient’s representative to report to the court periodically on the individual’s status, and may require a report include a financial accounting of expenditures authorized; and may direct the representative not to make certain decisions or  authorize expenditures. The court may also appoint a guardian ad litem to act as an advocate for the incapacitated individual’s best interests.

Nothing in Act 115 prevents the appointment of a guardian under the current Ch. 54 framework. However, if there is a petition for guardianship, Act 115 modifies stages in the guardianship proceedings, to require the review and consideration of the written statements and signed declarations under Act 115 in the event that a guardianship proceeding or temporary guardianship is commenced.

In addition, any person, including the adult-at risk agency, county corporation  counsel, or facility staff may request that the incapacitated individual be re-assessed to determine if they are no-longer incapacitated. The patient’s representative’s authority ends to make health care decisions or authorize expenditures if the individual is determined to no longer be incapacitated.

Annually upon request by DHS, each Register in Probate shall submit the number of declarations to DHS. By April 2027, and annually thereafter, DHS must submit a report on the number of patients admitted to a facility to the standing committees of the legislature.

Additionally, this new process has a sunset clause, so after 3 years, without further action by the Legislature to extend the process, this Next of Kin process will no longer be able to be used to consent to admission.

What comes next?

Over the next weeks and months, WHCA-WiCAL will work with the Wisconsin Hospital Association on some joint member education resources. Additionally, each organization will continue to work to educate our members on the provisions of the bill and what it means for you. We will also continue to work with the Department of Health Services to ensure that the forms developed for this process are clear and contain the necessary information for our member facilities. We will continue to be here to answer questions and to be a resource for you. Critically, as the process rolls out and facilities start to accept residents with Act 115 patient’s representatives, we want to hear about hiccups and issues as they arise so that we can address them with the other stakeholders and advocate for any necessary changes as we move forward.

As always, do not hesitate to reach out to Eric or Rick with any questions or concerns that you may have.