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Thursday, June 11, 2009

"Five Wishes" -- Sounds good but legally dangerous

Five_Wishes 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.

http://lawprofessors.typepad.com/trusts_estates_prof/2009/06/in-be-careful-what-you-wish-for-analyzing-the-five-wishes-advance-directive-97-ill-b-j-242-2009-ray-j-koenig-iii-p.html

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Following is text of a letter published in the Illinois Bar Journal June 2009. It was written in response to the Koenig-Hyde article. I trust you'll publish it in its entirety so that your readers are not misled:

Illinois Bar Journal letter to the editor
May 18, 2009

Dear Editor:

We’re flattered that authors Koenig and Hyde (“Be Careful What You Wish For: Analyzing the Five Wishes Advance Directive,” IBJ May 2009) pored over our document, and as would a law student studying a model contract, found areas that might-could-maybe-potentially become a problem. While we can all be grateful for detail-oriented attorneys, their article falsely suggests Illinois residents’ health care decisions won’t be honored if not written on the state form.

Acknowledging the legal intricacies of advance care planning, in 1997 we consulted with the American Bar Association’s Commission on Law and Aging in developing the national version of Five Wishes. Some 13 million copies of Five Wishes later, there have been zero cases of litigation in Illinois or elsewhere. Indeed, Illinois ranks among the top five states where Five Wishes is distributed. What few complaints we receive about Five Wishes generally come from people in non-Five Wishes states (currently fewer than 10) who don’t understand why they must use government words and forms to express their own personal wishes.

Even in the states that still have statutorily required language, mandatory warnings and forms, some people have pointed out that state advance directive laws are intended to complement and enhance fundamental constitutional and common law principles that affirm patient autonomy and that any authentic expression of a patient's wishes should be respected.
Nevertheless, in the non-Five Wishes states, we have taken the more conservative position and advise people to complete Five Wishes and attach it to their completed state form. It would be unfortunate for Illinoisans if they were now told to add that cumbersome layer of formality to what is now a simple and understandable process, both for the public and health care providers.

Five Wishes is immensely popular precisely because it is easy to understand and use and is written in clear, everyday language (23 languages). Five Wishes, unlike state forms, addresses personal, family, spiritual, dignity and comfort issues, which are the things people say would matter most to them if they were seriously ill or near death. Five Wishes has thus helped shift the focus to what the patient wants or doesn’t want so that his comfort and dignity are honored. We’re proud of the many Illinois health care providers, employers, businesses, places of worship and attorneys that are among our 15,000 partner organizations nationwide and that are themselves part of a larger engine driving change in America. For our part, we continue to consult with the ABA Commission on Law and Aging to keep current on all legal matters related to advance care planning.

Koenig and Hyde conclude that because Five Wishes is popular, lawyers and the General Assembly should go back and make the Illinois state form more user-friendly, sort of like trying to build a rounder wheel. A more sensible option would be to simply affirm patient rights and honor their wishes, not to perpetuate the notion that their decisions will not be honored unless the words they use are endorsed by the Illinois General Assembly.

Sincerely,


Paul Malley
President, Aging with Dignity
Aging with Dignity is a national non-profit organization

Posted by: Paul Malley | Jun 11, 2009 10:27:19 AM

Why are attorneys preparing these documents anyways? Living wills are provided by statute in nearly every state.

Posted by: John | Feb 24, 2010 2:00:34 AM

Im pending disability and I have no income. But, I need a copy of the5 wishes living trust. How can I get a free copy? 352-249-8915. Thank you

Posted by: Karen Gonzales | Apr 27, 2014 6:59:55 PM

The 5 Wishes key strength is also its principal weakness. That is, its simple language has two audiences: the testator and the medical personnel who will receive it. A grant of authority to make life-ending decisions should be an unequivocal declarative statement of power in the voice of the testator.

Similarly, the Wishes purport to accomplish the objectives of both a living will and an Advanced Healthcare Directive. Fill-in-the-blank wills are vulnerable to an array of challenges to which fill-in-the-blank ADs are not. The 5 Wishes tries to perform several activities at once, which is why it is simple. Yet that simplicity is precisely why the document is vulnerable in future litigation.

Posted by: EFM Lawyer | Sep 9, 2014 1:10:30 AM

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