Estate Planning

Be Careful What You Wish For:
Analyzing the " Five Wishes"Advance Directive

By Ray J. Koenig III and MacKenzie Hyde

The 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, these authors argue.

More and more clients are asking this question: "The hospital told me that I should use the Five Wishes instead of a power of attorney for health care. Is it the same thing?"

Aging with Dignity, a Florida-based nonprofit, created the Five Wishes document¹ in 1996.² According to the group's Web site, "the Five Wishes document helps you express how you want to be treated if you get seriously ill and unable to speak for yourself."³ The document intends to "speak to people in their own language, not in 'doctor speak' or 'lawyer talk'" and "can be used in the living room instead of the emergency room."⁴

The Five Wishes' eponymous elements detail (1) the person you want to make health care decisions for you when you cannot make them for yourself, (2) the kind of medical treatment you want or do not want, (3) how comfortable you want to be, (4) how you want people to treat you, and (5) what you want your loved ones to know.⁵

The easy-to-understand language and attractive layout has led to a growing appeal. over 11 million copies of the document are circulating and over 15,000 health-care and other organizations are distributing it, according to Aging with Dignity's Web site.⁶

Aging with Dignity also claims that the Five Wishes document meets "the legal requirements" in 40 states, including Illinois, though it does not explicitly state the exact legal requirements the document meets.⁷ The actual Five Wishes document states you may use the Five Wishes document instead of a "living will or a durable power of attorney for health care."⁸ Further, the document states, "as soon as you sign it, it takes away any advance directive you had before."⁹

It's true that the Five Wishes document could serve as a legally valid living will and power of attorney for health care in Illinois. But there are a number of reasons why it should not be used in place of the optional forms included in the Illinois Living Will Act and Powers of Attorney for health Care Act.¹⁰This article will discuss what the authors regard as the shortcomings of the Five Wishes document as a legal instrument and its value as a tool for helping clients think productively about end-of-life issues.

Tried and true: the statutory forms

The Illinois statutory forms provide a uniformity that benefits all involved, including the principal, the agent, doctors, hospitals, and other health care providers who rely on it.¹¹ A document like the Five Wishes, which is designed to meet the requirements of the majority of the states, will inevitably lack the specificity that ensures the document's appropriateness in each state. These criticisms may not appear important at the time of execution, but, as is explained below, could potentially become critical once an agent is required to act.

The Five Wishes document should not be used as a replacement for statutory advance directives because it contains legally ambiguous language and may conflict with the authority delegated under a separate power of attorney for property. Further, the document might not com-port with Illinois law because principals are permitted to name their doctor as health care agent when certain medical conditions are present.

That said, the Five Wishes document can be an excellent tool to assist clients and their families as they begin to think about end-of-life issues. Furthermore, the Five Wishes document offers something the statutory forms lack: an easy-to-understand layout free from intimidating legalese.

Nonetheless, legal language is critical to the creation of a valid, uncon-testable legal document. While the Five Wishes document can serve as an excellent resource to guide principals as they consider end-of-life issues, it should not be used as the document through which they delegate decision-making power to an agent or specify end-of-life medical directions, as the following sections explain in more detail.

The Five Wishes as living will

Wish 2 ("The Kind of Medical Treatment I Want or Don't Want") of the Five Wishes document meets the requirements for a living will.¹² The Illinois Living Will Act does not require that people use the form provided in section 35/3(e); instead, a form "may include other specific directions."¹³

The form provided in the Illinois Living Will Act states in part as follows: "if at any time [the principal] should have an incurable and irreversible injury, disease, or illness judged to be a terminal condition by [his or her] attending physician... and [the physician] has determined that [the principal's] death is imminent except for death delaying procedures" such procedures should be withheld or withdrawn.¹⁴

Wish 2 goes beyond the declaration included in section 35/3(e) in that the principal may specify directions for the agent to follow if a doctor and another health care professional determine that the principal is (1) close to death, (2) in a coma and not expected to wake up or recover, or (3) has permanent and severe brain damage and is not expected to recover.¹⁵ For each of these scenarios, the principal can indicate that he (1) wants life support treatment, (2) does not want life support treatment and if it has been started should be stopped, or (3) wants his doctor to determine if life support treatment would help and if it should be discontinued.¹⁶

At first glance, the specificity provided in the Five Wishes document seems advantageous. After all, it gives the principal's doctor more specific instructions about how to care for the principal.Specificity, however, is not always a plus. Assume, for example, the doctor determines that the principal has severe brain damage and is close to death. What if the principal indicated that he wanted life support if he was close to death but not if he was brain damaged?

Which "wish" should take precedence, and who should decide? Ultimately, a judge might, at a high emotional and financial cost to the principal's family.

Second, unlike the Living Will Act, Wish 2 requires both a doctor and a health care professional to agree on which condition the principal faces.¹⁷ The document, however, does not define"health care professional," an ambiguity that could lead to litigation.

The Five Wishes as power of attorney for health care

While the power of attorney for health care statutory short form is widely used in Illinois, it is not required.¹⁸ Non-statutory forms, however, must comply with section 45/4-5 of the Powers of Attorney for health Care Act, which limits who may serve as an agent: "neither the attending physician nor any other health care provider who administers care to the principal may act as agent."

Wish 1 complies with section 45/4-5 and also recommends that the principal not choose an agent who is the owner or operator of a health or residential or community care facility serving the principal, an employee or spouse of an employee of the principal's health care provider, or anyone already serving as agent for more than 10 people unless he or she is a spouse or close relative.¹⁹

While these extra limitations seem to afford the principal a greater degree of protection, the Five Wishes document does not define "health care provider," a potentially crucial term. For example, if a principal made his or her physical therapist, masseuse, or acupuncturist an agent under Wish 1, do those occupations fall within the parameters of health care provider? Without a definition, no one can be sure.

In addition to choosing an agent, Wish 1 allows the principal to specify from a list of activities exactly what his or her agent is allowed to do on his or her behalf.²⁰ The principal is instructed to "cross out anything [he or she doesn't] want [his or her] Agent to do that is listed."²¹ The list includes activities that are common for health care agents, such as authorizing or refusing to authorize medications and/or surgeries and admitting the principal to an assisted living facility or hospice.²²

The list, however, also includes activities that typically fall under the 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 [his or her] wishes."²³

Suppose, for example, that the principal made her son the agent under the Five Wishes document and her daughter her agent under a power of attorney for property. Son wants to sue his mother's nursing home because it failed to give Principal her medication for a week. Daughter, however, believes it was an innocent mistake that did not harm principal and refuses to file suit. Will a judge end up deciding whether to litigate?

Power of attorney trumps living will - do the Five Wishes accommodate?

In Illinois, a validly executed power of attorney for health care trumps a living will, unless an agent is unavailable to make decisions regarding life sustaining or death delaying procedures on behalf of the principal.²⁴ The power of attorney supersedes all other advance directives because, unlike the living will, an agent under power of attorney has a wider range of discretion and authority than is provided under other advance directives.

Further, the living will is rendered unnecessary because a provision in the statutory short form covers life-sustaining treatment.²⁵ That provision allows the principal to specify that he (1) "does not want [his] life to be prolonged, nor does [he] want any life-sustaining treatment to be provided or continued if [his] agent believes the burdens of the reatment outweigh the expected benefits;" (2) wants his "life to be prolonged and want[s] life-sustaining treatment to be provided or continued unless [he] is in a coma which the attending physician believes to be irreversible;" or (3) wants his "life to be prolonged to the greatest extent possible."²⁶ These options are intended to apply to all contingencies.

As discussed earlier, Wish 1 meets the requirements for a valid power of attorney for health care but, unlike the statutory short form, does not include a provision regarding life-sustaining treatment. These directions are contained in Wish 2, which thus far has only been examined as a living will.

Wish 2 allows the principal to make specific instructions that are to be followed when he or she (1) is close to death; (2) is in a coma and not expected to wake up or recover; or (3) has permanent and severe brain damage and is not expected to recover.²⁷Wish 2 can be read in concert with Wish 1 if the principal indicated that he (1) wants life support treatment or (2) does not want life support treatment and if it has been started should be stopped.²⁸ These are essentially the same options provided in section 2 of the statutory short form and comply with Illinois law.²⁹

A problem arises, however, if the principal chose option three: that his or her doctor is to determine if life support treatment would help or should be dis continued.³⁰ Under Illinois law, principals may not appoint their doctor or other health care provider as agent.³¹ Under option three, the responsibility to decide for the principal is placed on the doctor, while under option one of the statutory short form, the agent makes the decision for the principal by weighing the burdens and benefits of prolonged treatment.³²

By choosing Wish 2, option three, a principal can effectively give his doctor the power to act as his agent. Doing so is explicitly prohibited by the Powers of Attorney for health Care Act. ("Neither the attending physician nor any other health care provider may act as agent under a health care agency.")³³

The general assembly expressly prohibited doctors from serving as agents for their patients because of the potential conflicts of interest that may arise. For example, a doctor could conceivably base his decision on the level of insurance coverage a patient has or on the doctor's own moral code.

Interestingly, even the Five Wishes document does not permit the principal to delegate authority to his or her "health care provider" under Wish 1.³⁴This leads us to suspect that Aging with Dignity did not contemplate states, like Illinois, where a validly executed power of attorney supersedes a living will.

Ambiguities in the signature clause

The signature clause for the Five Wishes document contains two ambiguities that could lead to confusion and conflict. First, it provides that the principal "ask[s] that [his or her] family, doctors, and other health care providers, friends, and all others, follow [his or her] wishes as communicated by my health Care Agent (if I have one and he or she is available), or otherwise expressed in this form."³⁵

Does this mean that the agent's authority always trumps the directions given in the form? What if the agent directs the hospital to act in a manner that conflicts with another aspect of the Five Wishes document?

Second, the signature clause provides that the Five Wishes document "becomes valid, when [the principal is] unable to make decisions or speak for [himself or herself].³⁶

So, does an agent get to act if the principal is literally unable to speak but is otherwise mentally competent? The conjunction "or" in the signature clause results in ambiguous directions that can be interpreted in many ways.

Using the Five Wishes to promote dialogue

Whatever its other shortcomings, the Five Wishes document is an excellent tool to foster conversation. Many people are squeamish about initiating a dialogue with family members about end-of-life issues. The Five Wishes document can help principals communicate with their agent and family members about end-of-life choices.

Wish 1 explains how to choose an agent.³⁷ The principal must be sure that the agent will use his or her power well and honor the principal's wishes.

Consider the agent who knows the principal would not want to continue to live yet cannot bring himself to remove her from life support. Indecision such as this, and exploitation by a health care agent, are unfortunate consequences of selecting an inappropriate agent.

Wish 1 helps principals choose an appropriate agent through its discussion of the responsibilities and power the agent will have if the principal becomes incapacitated. The examples give both the principal and the agent a clear understanding of what the agent's role will be.

Similarly, Wish 2 presents medical situations in which principals may find themselves at the end of life.³⁸ The principal can discuss these with the agent and make sure the agent is willing to carry out the principal's wishes.

And while Wishes 3, 4, and 5 are not legally binding ("I wish for warm baths; I wish to have my favorite music played; I wish to have my hand held; I wish to be forgiven..."), they are useful conversation starters.³⁹ The principal can discuss these while he or she has capacity so the agent knows the principal's beliefs. Wish 5 ("What I Want My Loved ones To Know") makes the principal think about what to communicate to friends and family members before it is too late.

Conclusion

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 inca-pacity.

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."⁴⁰The 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. ■

Ray J. Koenig III is a partner at Bloom & Koenig, LLC in Chicago. He practices in the areas of probate litigation, trust guardianship,litigation, fiduciary litigation, elder law, planning, and estate administration, with an emphasis on will, trust, and advance directive contests. MacKenzie Hyde, a new graduate of Loyola University Chicago School of Law, is a law clerk at Peck, Bloom Koenig, LLC.1. www.agingwithdignity.org/5wishes.html.

1. www.agingwithdignity.org/5wishes.html.
2. Id.
3. www.agingwithdignity.org/5wishes.html.
4. Id.
5. Id.
6. Id.
7. Id; Five Wishes document (hereinafter "Five Wishes"), p 3, available at http://www.akrepublicans. org/pastlegs/22ndleg/pdf/5wishes.pdf.
8. Five Wishes, p 3.
9. Id.
10. See 755 ILCS 45/4-10; 755 ILCS 35/3(e).
11. 755 ILCS 45/4-10(a).
12. Five Wishes, p 6; 755 ILCS 35/1 et seq.
13. 755 ILCS 35/3(e).
14. Id.
15. Five Wishes, p 7.
16. Id.
17. Id; 755 ILCS 35/3(e).
18. 755 ILCS 45/4-10(a).
19. Five Wishes, p 4.
20. Five Wishes, p 5.
21. Id.
22. Id.
23. Id.
24. 755 ILCS 45/4-11.
25. See 755 ILCS 45/4-10(1).
26. 755 ILCS 45/4-10(2), emphasis added.
27. Five Wishes, p 7.
28. Id.
29. 755 ILCS 45/4-10.
30. Five Wishes, p 7.
31. 755 ILCS 45/4-5.
32. Five Wishes, p 7; 755 ILCS 45/4-10(2).
33. 755 ILCS 45/4-5.
34. Five Wishes, p 4.
35. Five Wishes, p 10, emphasis added.
36. Id.
37. Five Wishes, p 4-5.
38. Five Wishes, pp 6-7.
39. Five Wishes, pp 8-9.
40. www.agingwithdignity.org/5wishes.html.