Yes. A person who has been declared incapacitated may still be able to make some health care decisions, depending on their condition and ability to understand and communicate the decision.
A declaration of incapacity does not automatically remove all rights from the principal (the person who created the Health Care Power of Attorney). The health care agent is authorized to make decisions only when the principal lacks the ability to make the specific health care decision at issue, and if the principal regains the ability to understand and communicate a decision, the principal’s authority to make that decision returns. Additionally, Wisconsin law generally requires that the principal’s known wishes and instructions be followed, and the health care agent should act according to those wishes when making decisions on the principal’s behalf.
The short answer is that a principal may continue to participate in or make health care decisions after being declared incapacitated if they have sufficient ability to understand and communicate those particular decisions, and the agent’s authority applies only to decisions the principal is unable to make.
Please contact our Madison, Wisconsin estate planning attorneys if you would like to learn more on this topic!