Taxation & Estate Planning

Powers of Attorney vs. The Five Wishes Advance Directive

By Joel A. Schoenmeyer

We all crave simplicity, don't we? I know I do, and I know I sometimes get frustrated when things seem complicated just for the sake of being complicated. But I also recognize that, sometimes, things are complicated because that's the way life is.

The Five Wishes advance directive is an attempt to simplify matters, by allowing a person to dictate "how you want to be treated if you get seriously ill and unable to speak for yourself." It's a do-it-yourself document, one not written in legalese. But, as Ray J. Koenig III and MacKenzie Hyde make clear in their article in this month's Illinois Bar Journal (to be found here), users of the Five Wishes need to be careful what they wish for.

Some of the problems addressed in the article:

-Five Wishes creates ambiguity, as it doesn't define important terms like "health care professional"

-Five Wishes blurs the line between an agent under a health care power of attorney and an agent under a property power of attorney. Five Wishes allows you to delegate some property-related activities to your (health care) agent.

-Five Wishes allows a principal to essentially name a doctor as his or her agent, which is contrary to Illinois law.

-Five Wishes is ambiguous regarding when the agent takes over in the decision-making process.

The authors make it clear that Five Wishes has some value as a tool to stimulate dialogue about hard-to-discuss issues, but there are obviously some very major concerns about whether Five Wishes should be used in addition to or in place of Illinois powers of attorney.

Full post as published by Death and Taxes Blog on May 11, 2009 (boomark / email).