The “Five Wishes” advance directive, created and made available through Aging with Dignity, a Florida-based nonprofit organization, is advertised as a replacement for the Illinois Statutory Short Form Power of Attorney for Health Care (Durable Power of Attorney for Health Care) and Living Will. Is it, however, a suitable substitute and does it serve as a legally binding advance directive? What are the strengths and weaknesses of the “Five Wishes” as an advance medical directive? And, ultimately, should it be used in place of the statutory forms in Illinois?
Aging with Dignity claims that over 11 million copies of the “Five Wishes” document are currently circulating and that over 15,000 health-care and other organizations are distributing it. Aging with Dignity also claims that the document meets the “legal requirements” of advance medical directives of 40 states, including Illinois. It is intended to “speak to people in their own language, not in ‘doctor speak’ or ‘lawyer talk.'” As such, it is useful and appropriate as a tool to help people think about the issues involved in end-of-life situations. The “Five Wishes” can help principals choose an appropriate agent and communicate their wishes to other members of their families and to their chosen health care agents. As we point out, however, it should not be used as a substitute for the statutory form because of its shortcomings as a legal document.
The Illinois statutory forms are, at their core, legal documents. Specific statutory provisions govern their interpretation and their enforceability. The terms used in the statutory forms are defined, and restrictions in the appointment of agents and their powers are clearly delineated. The “Five Wishes” cannot claim those same attributes. The “Five Wishes” was drafted to attempt to meet the requirements of a majority of the states and, as such, lacks the specificity that makes it appropriate for each state. Legal language is critical to the creation of a valid, uncontestable legal document, something that the “Five Wishes” lacks. In making the “Five Wishes” consumer-friendly, its drafters necessarily and logically eliminated much of the “legalese” that is critical to its value as a legal document. The “Five Wishes” contains ambiguities that may lead to the very thing that advance medical directives are designed to avoid: contentious litigation. Some of the specific problems with the “Five Wishes” include:
- Terms used in the document are not defined, leaving them subject to differing interpretations;
- Invalid agencies may be created pursuant to the terms of the document;
- Choices made by the principal may lead to confliciting directives; and
- The document crosses over into the realm of the Illinois Power of Attorney for Property and may conflict with it.
Effect of Signing the “Five Wishes.” The “Five Wishes” document indicates on its face that it may be used in place of a “living will or a durable power of attorney for health care.” It further indicates that “as soon as you sign it, it takes away any advance directive you had before.” In other words, signing a “Five Wishes” document revokes any and all other advance medical directives then in effect. It is, therefore, critical that, before signing the “Five Wishes” document, one be aware of the impact and legal implications of signing such a document and that, as with any other legal document, an attorney be consulted. Though written in an easy-to-understand, user-friendly manner, without the usual “legalese,” the impact of the “Five Wishes” is very much legally binding as an advance medical, and possibly even financial, directive.
The “Five Wishes” as Advance Medical Directive. Neither the Illinois statutory Living Will nor the Illinois Durable Power of Attorney for Health Care are required to be used in the form suggested by Illinois law. The Illinois Living Will Act indicates that a Living Will “may include other specific directions.” Wish 2 of the “Five Wishes” meets the requirements for a living will. It goes beyond the declaration of the Illinois Living Will Act, however, in allowing the principal to specify directions for the agent to follow under certain circumstances. It is easy to imagine situations that could lead to contradictory instructions to the agent. The “Five Wishes” also requires agreement by both a physician and a “health care professional,” without ever defining that term, an ambiguity that could lead to litigation.
Although a Power of Attorney for Health Care needs to follow the form prescribed by Illinois law, a nonstatutory form must comply with Section 45/4-5 of the Powers of Attorney for Health Care Act. That section limits who may be appointed to serve as agent under the power of attorney, and prohibits “the attending physician” and “any other health care provider who administers care to the principal” from acting as agent. Although Wish 1 would seem to comply with that provision of the Illinois statute, an ambiguity exists because the term “health care provider” is not defined.
The list of activities permitted of an agent includes those that typically fall under the Illinois Durable Power of Attorney for Property, such as “apply[ing] for Medicare, Medicaid, or other programs or insurance benefits for the [principal]” and “tak[ing] any legal action needed to carry out [the principal’s] wishes.” Thus, a conflict could easily arise between the powers of the agent named in the “Five Wishes,” and the agent named in the principal’s Power of Attorney for Property.
Conclusion. Despite its legal and other shortcomings, the “Five Wishes” document can serve as an excellent document to promote a family discussion of end-of-life issues. It provides an impetus for conversation of otherwise taboo or “off-limits” issues that are often swept under the rug or left unspoken. Identity of an appropriate agent, powers of the agent, specific medical conditions and treatment of those conditions, and the principal’s wishes regarding his or her general care are all raised by the “Five Wishes” document. The principal can discuss these and related issues, and communicate his or her wishes to family members and the agents to be appointed. In the final analyis, however, the “Five Wishes” should not be used as a substitute for the statutory powers prescribed by Illinois law. The ambiguities of the “Five Wishes” and its conflict with provisions of the Illinois statutes make it a poor substitute for the Illinois form Living Will and Durable Power of Attorney for Health Care. Those documents can be customized to broaden their reach within the confines of the statutory provisions, without subjecting the documents to potential litigation and without keeping the named agent from legally being able to carry out the principal’s directives. The appropriate and useful role for the “Five Wishes” is not as a legal document, but rather as a tool to promote family dialogue about aging, incapacity and the principal’s wishes regarding end-of-life issues.