How to Navigate a Wisconsin Hospital Discharge Without a Power of Attorney

If your parent is being discharged from a Wisconsin hospital and nobody holds power of attorney, you're not stuck. Wisconsin Act 115 (effective June 1, 2026) created a new pathway — the "Patient's Representative" designation — that lets a next-of-kin authorize nursing home or CBRF admission directly from the inpatient unit without filing for guardianship. This is a major change from prior law, where the only option was a costly, months-long probate guardianship proceeding.

The catch: Act 115 only works from an inpatient hospital unit, follows a strict priority hierarchy, and sunsets in 2029. Understanding exactly when it applies — and when you still need guardianship — is the difference between a smooth transition and weeks of legal limbo while your parent sits in a hospital bed the facility wants back.

Act 115: The New Pathway

Wisconsin Act 115 allows a designated "Patient's Representative" to make care decisions when the patient lacks capacity and has no existing power of attorney or guardian. Here's how it works:

Priority hierarchy — The representative must be the highest-available person on this list:

1. Spouse or registered domestic partner
2. Adult child
3. Parent
4. Sibling
5. Grandparent
6. Grandchild
7. Close friend

What the representative can do:

• Consent to admission to a nursing home or community-based residential facility (CBRF)
• Make health care decisions
• Enroll the patient in Medicaid
• Authorize health-care-related expenditures

Requirements:

• The patient must be in an inpatient hospital unit (not observation status, not at home, not already in a facility)
• Two physicians, or one physician and one advanced practice clinician, must determine the patient lacks capacity
• The representative files a sworn declaration — no notary required
• The declaration is filed with the county Register in Probate

Automatic termination — The authority ends if a guardian is appointed, the patient is discharged to a non-facility setting, a previously executed power of attorney is located, or the patient regains capacity. All admissions under Act 115 sunset June 1, 2029.

When Act 115 Doesn't Apply

Act 115 covers admission from an inpatient hospital unit to a nursing home or CBRF. It does not cover:

• Discharge to home — if the hospital wants to send your parent home and you believe the discharge is unsafe, your tool is the expedited appeal through Acentra Health, not Act 115
• Observation status — if your parent was classified as outpatient under observation rather than inpatient, Act 115's authority may not activate. Confirm admission status with the hospital billing department.
• Care decisions at home — once your parent is discharged to a non-facility setting, Act 115 authority terminates. You would need a valid POA or guardianship for ongoing decisions.
• Financial decisions beyond care — selling property, managing bank accounts, or making non-healthcare financial decisions requires a power of attorney for finances or a court-appointed guardian

The Guardianship Route (When You Need It)

If Act 115 doesn't cover your situation — parent at home, contested family dynamics, ongoing financial management needed — county probate guardianship is the remaining option:

• Filing — petition through your parent's county probate court
• Timeline — typically 4–8 weeks from filing to hearing
• Cost — attorney fees typically $3,000–$5,000 for uncontested cases; significantly more if contested
• Training requirement — the proposed guardian must complete a free training course through UW-Green Bay at least 96 hours before the final hearing
• Post-appointment obligations — file an asset inventory within 30 days, $250 spending cap without court approval, annual reporting

Comparison: Act 115 vs. Guardianship vs. POA

Who This Is For

• An adult child whose parent is incapacitated in a Wisconsin hospital and nobody holds power of attorney or health care directive
• Families evaluating whether Act 115 applies to their situation before pursuing guardianship
• Anyone trying to understand the difference between Act 115's temporary authority and full probate guardianship
• Hospital social workers and discharge planners looking for a clear explanation of the new law to share with families

Who This Is NOT For

• Families where a valid power of attorney already exists — Act 115 authority doesn't activate and isn't needed
• Parents who currently have capacity and can sign their own documents — execute a POA for health care now, before a crisis
• Situations involving contested guardianship between family members — you need an elder law attorney

Frequently Asked Questions

Can I use Act 115 if my parent is in observation status, not inpatient?

Act 115 specifies authority for admission from an "inpatient" hospital unit. If your parent is classified as outpatient under observation, the authority may not apply. Confirm your parent's admission status with the hospital billing department. If they're under observation, you may need to pursue guardianship or challenge the observation classification through Acentra Health.

What if multiple siblings disagree about using Act 115?

Act 115 follows a strict priority hierarchy. The highest-available person on the list has authority. If two people share the same priority level (e.g., two adult children), the statute addresses this through the declaration process. In practice, if siblings actively dispute the decision, the hospital may decline to proceed under Act 115 and require guardianship to resolve the conflict.

Does Act 115 let me manage my parent's finances?

Only health-care-related expenditures and Medicaid enrollment. Act 115 does not grant authority over bank accounts, property sales, investment decisions, or general financial management. For those, you need a power of attorney for finances (if your parent regains capacity to sign one) or a court-appointed guardian.

Should I still pursue guardianship even if Act 115 works?

If your parent's incapacity is likely permanent and ongoing care decisions will be needed after discharge, yes. Act 115 authority terminates when your parent leaves the inpatient unit. The Hospital-to-Home Wisconsin Guide covers both pathways — Act 115 for immediate decisions and guardianship preparation for long-term authority — including the UW-Green Bay training requirement and the 30-day asset inventory deadline.

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