Why Is the Five Wishes Living Will Considered Legally Ambiguous?

Although the Five Wishes Advance Directive has many advantageous features, some legal experts consider it legally ambiguous due to several unclear or contradictory instructions in the document. Among these are the following: 

• The document allows the person making the declaration to designate a healthcare agent (proxy) to make decisions about their care should they be unable to speak for themselves. Legally, this person is granted broad decision-making powers due to the complex and ever-changing medical needs of a person who is critically ill. They can, for example, consent to or decline specific medical interventions such as intubation or dialysis, authorize admission to the hospital or ICU, or authorize a “do not resuscitate” order on the patient’s behalf. However, the Five Wishes document instructs the person preparing the document to “cross out anything you don’t want your agent to do,” then lists a wide array of decisions that are often essential to achieving treatment goals. These include:
• Making choices about medications, surgeries and medical tests
• Interpreting or clarifying the patient’s instructions for healthcare providers
• Consenting to admission to the hospital
• Authorizing or refusing to authorize medication for pain

If the maker of the directive crosses any of these items out, the healthcare proxy, in many instances, would be prevented from fulfilling their obligation to make decisions on the patient’s behalf.

• The document allows the person making the declaration to choose whether they want aggressive life-sustaining  treatment in certain medical circumstances, specifically:
• If the person is in a coma and not expected to wake up
• If the person is close to death
• If the person has sustained severe and likely permanent brain damage
• Any other condition the person specifies

However, legal experts have pointed out that the document’s creator can unintentionally make requests for treatment or no treatment that conflict. For example, suppose the document says the person does not want life support treatment if they have sustained severe and permanent brain damage. However, they do want life support if they are “close to death.” If the patient is both seriously brain damaged and close to death, which instruction should providers follow, and which should they ignore? 

• Perhaps the most troublesome contradiction in the Five Wishes document is contained in Wish 2. This section allows the patient to specify what “life support” means to them and what care they do or do not want in that regard. Examples of treatments the person can consent to or decline include interventions such as a breathing tube and mechanical ventilation (respiratory support), intravenous fluids (artificial hydration), tube feedings (artificial nutrition), blood transfusions etc. 

At first glance, it appears evident that if the person making the declaration declines life-prolonging options (for example, a breathing tube if they can’t breathe effectively on their own), they are choosing an option that is likely to result in death. However, at the top of Wish 2, the document reads, “I do not want anything done or omitted by my doctors or nurses with the intention of taking my life.” This statement directly contradicts any instruction to withhold life support, since doing so is by definition an intentional act that will almost certainly result in the patient’s death. Because of this contradictory statement, providers could be extremely limited in their ability to avoid instituting life-saving measures regardless of what the instructions in the directive say. 

Due to this ambiguity, many legal experts agree that the Five Wishes document should guide conversations about end-of-life planning and treatment goals but not replace a statutory advance directive for healthcare or living will. While statutory forms do not cover the scope of the issues included in Five Wishes, the two documents used together can be very effective at providing your healthcare team and your next of kin the information they need to care for you according to your values and wishes if you are unable to speak for yourself. 

Sources

“”Five Wishes” — Sounds good but legally dangerous”. Law Professor Blogs. https://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 

“Be careful what you wish for: analyzing the “Five Wishes” advance directive”. The Free Library. https://www.thefreelibrary.com/Be+careful+what+you+wish+for%3a+analyzing+the+%22Five+Wishes%22+advance…-a0199989723