“Five Wishes” — Sounds good but legally dangerous

In Be Careful What You Wish for: Analyzing the “Five Wishes” Advance Directive, 97 Ill. B. J. 242 (2009), Ray J. Koenig III (member, Clark Hill PLC, Chicago, Illinois) and MacKenzie Hyde (law clerk, Peck, Bloom & Koenig, LLC, Chicago, Illinois) warn that [t]he popular Five Wishes document takes the legalese out of advance directives and helps clients think about end-of-life issues.  But the Five Wishes should not be used in place of Illinois statutory forms for living wills and powers of attorney for health care.”

Here is the conclusion of their article:

Attorneys should be wary of recommending that clients use the Five Wishes document instead of the forms provided by the Living Will Act and the Powers of Attorney for health Care Act. The Five Wishes document uses legally ambiguous language and can potentially conflict with the authority delegated under a power of attorney for property. In certain instances the document allows the principal to breach the statutory requirement that a principal’s doctor not serve as his agent.

These problems will inevitably result in litigation, which is something advance directives attempt to avoid. The appropriate – and indeed, very useful – role for the Five Wishes is not as a legal document, but rather as a tool to promote family dialogue about aging and incapacity.

The lesson we should take from the popularity of the Five Wishes document is that lawyers and the general Assembly must be more responsive to the needs of Illinois citizens. Aging with Dignity has distributed over 11 million copies of the Five Wishes, which shows that the public wants advance directives that are easy to understand and can be completed in “the living room.” The statutory forms should be made friendly to the social workers, nurses, and other care providers who are often integrally involved in the execution of advanced directives.