Five Wishes: Is This Advance Directive Legal in Your State?

Family caregiver and older adult reviewing a Five Wishes advance directive at a kitchen table with laptop, documents, and notary stamp

Five Wishes is a widely used advance directive that combines a living will with a healthcare power of attorney and personal care preferences. Its legal recognition and attestation rules differ by state. This article guides U.S. family caregivers through what Five Wishes covers, how to check state legality, and practical checklists to ensure care wishes are honored when they matter most.

What Five Wishes Is and How Advance Directives Work

Five Wishes is one of the most widely used advance directives in the United States. Created by the nonprofit organization Aging with Dignity in 1997, it was designed to be more than just a legal document. It aims to be a conversation starter, written in plain, everyday language that helps people discuss and document their end-of-life wishes in a personal and spiritual way. This user-friendly approach is why over 40 million people have used it and why so many family caregivers turn to it for peace of mind. It transforms a difficult topic into a manageable set of personal choices.

Breaking Down the Five Wishes

The document is structured around five key sections, each addressing a different aspect of care and personal dignity. This holistic approach covers medical, personal, emotional, and spiritual needs.

  • Wish 1: The Person I Want to Make Health Care Decisions for Me When I Can’t.
    This section is your health care power of attorney. You name a person (and at least one alternate) to be your health care agent. This person will speak for you when you are unable to. Example statement: “I choose my son, John Smith, to be my health care agent. If he is unable to serve, I choose my sister, Mary Jones.”
  • Wish 2: The Kind of Medical Treatment I Want or Don’t Want.
    This is your living will. It allows you to state your preferences about life-support treatments. You can specify under what conditions you would or would not want treatments like mechanical ventilation or tube feeding. Example statement: “If my doctors determine I am in a persistent vegetative state with no reasonable hope of recovery, I do not want life-support treatment.”
  • Wish 3: How Comfortable I Want to Be.
    This wish focuses on comfort care and pain management. It lets you express what would make you most comfortable, covering things like pain medication, personal grooming, and your environment. Example statement: “I want my pain to be managed aggressively, even if it means I am drowsy or sleep more. I would like to have photos of my family in my room.”
  • Wish 4: How I Want People to Treat Me.
    This section addresses your personal and spiritual needs. You can specify who you want to visit you, whether you want someone to pray with you, and other matters of personal dignity. Example statement: “I wish to have a clergy member of my faith visit me. I want to be told what is happening, even if I appear unconscious.”
  • Wish 5: What I Want My Loved Ones to Know.
    This final wish is about forgiveness, love, and how you want to be remembered. It provides a space for final messages to your family and instructions for your funeral or memorial service. Example statement: “I want my family to know how much I love them. I forgive anyone who has hurt me and ask for their forgiveness. I wish to be cremated.”

The Legal Standing of Five Wishes

Five Wishes is a unique document because it combines a living will (Wish 2) and a health care power of attorney (Wish 1) into a single form. It is a voluntary advance directive, not a statutory one. A statutory form is a specific template created and included in a state’s laws. While some states offer these official forms, they often allow for other documents to be used as long as they meet the state’s legal requirements for content and signing.

Currently, Five Wishes meets the legal requirements in 46 states. In the remaining states (New Hampshire, Kansas, Ohio, and Texas), you may need to take an extra step, like attaching a state-specific form. It’s crucial to understand that even where it is legally valid, its enforceability depends on it being signed and witnessed correctly according to your state’s laws.

Signing on the Dotted Line: Witnesses and Notaries

Proper execution, known as attestation, is what makes an advance directive legally binding. State requirements vary significantly.

  • Witnesses: Most states require the document to be signed in the presence of two qualified adult witnesses.
  • Notarization: A few states, including Missouri, North Carolina, South Carolina, and West Virginia, require the document to be notarized.
  • Either/Or: Some states allow you to choose between using two witnesses or a notary.

States also have strict rules about who can serve as a witness. Common disqualifications include your named health care agent, a relative who stands to inherit from you, your attending physician, or an employee of the health care facility where you are receiving care. For example, a state statute might include language like this: “Each witness shall be an adult and shall not be the agent, the principal’s health care provider, or an employee of the principal’s health care provider.”

Five Wishes vs. POLST: What’s the Difference for Emergency Care?

It is vital for caregivers to understand that Five Wishes is not a medical order. In an emergency, first responders like paramedics cannot act on the instructions in an advance directive. They must follow direct medical orders. This is where a Physician Orders for Life-Sustaining Treatment (POLST) form comes in. A POLST (also called MOLST, POST, or other names depending on the state) is a medical order signed by a doctor that translates your wishes into actionable instructions for emergency personnel, such as “Do Not Resuscitate” (DNR). Five Wishes is for planning future care when you have time to make decisions, while a POLST is for directing immediate medical treatment in a crisis. They work together; Five Wishes guides your agent and doctors in creating a POLST when your health declines.

Practical Tips for Caregivers

Once the Five Wishes document is completed, your job is to make sure it works when needed.

  • Notarize Anyway: Even if your state only requires witnesses, getting the document notarized adds a layer of legal authority and reduces the chance that a provider will question its validity.
  • Store and Share Strategically: Keep the original in a safe but accessible place, not a safe deposit box. Give copies to the health care agent, alternate agent, primary care physician, and local hospital. Upload a digital copy to the patient’s electronic health record portal.
  • Create a Distribution Log: Keep a simple list of who received a copy and on what date. This helps your agent locate the document quickly and demonstrates that the wishes were clearly communicated.

SEO Guidance

Target Keywords: Five Wishes legality, advance directive form, Five Wishes notarization, healthcare power of attorney, living will document

Long-Tail Queries: “Is Five Wishes legal in California?”, “Five Wishes witness requirements Texas”, “How to make Five Wishes legally binding”, “Difference between Five Wishes and POLST”

Recommended Subheadings:

  1. What Are the Five Sections of the Five Wishes Document?
  2. Is Five Wishes a Legally Binding Document?
  3. Witnesses vs. Notarization: How to Sign Your Five Wishes Correctly
  4. Five Wishes and POLST Forms: Planning vs. Emergency Orders

Sources and Verification

All state-specific information should be verified against current laws, which can change.

  • Authoritative Sources: The Five Wishes website, your state’s statutes on health care directives (usually found on the state legislature’s website), and guidance from your state’s Department of Health or Attorney General’s office.
  • State Law Examples:
    • North Carolina (Notarization Required): North Carolina General Statute § 32A-19 requires that a health care power of attorney be “signed by the principal and acknowledged before a notary public.”
    • Florida (Witnesses Allowed): Florida Statute § 765.202 states a living will “must be signed by the principal in the presence of two subscribing witnesses.”
    • Texas (Statutory Form Priority): Texas Health and Safety Code Chapter 166 provides a statutory “Directive to Physicians and Family or Surrogates.” While Five Wishes can be used, attaching the statutory form is often recommended to ensure compliance with specific Texas provisions.

How to Check Legality in Your State and a Practical Caregiver Checklist

You’ve completed the Five Wishes document, a significant step in honoring your loved one’s end-of-life preferences. Now comes the critical part: ensuring it’s legally sound in your state. While Five Wishes is designed to meet most states’ requirements, laws vary. This guide provides a step-by-step process to verify its legality and make it an enforceable tool in your caregiving journey.

How to Confirm Five Wishes Is Legally Valid in Your State

Don’t leave this to chance. A few proactive steps now can prevent immense stress later. Follow this checklist to confirm the document will be honored when it’s needed most.

  • Search Your State’s Laws Online.
    Start with a direct search of your state’s legislative code. Use specific terms to get the best results. 
    Sample Search Queries:
"[Your State] advance directive statute"
"[Your State] health care power of attorney witness requirements"
"[Your State] living will notarization rules"

    Look for sections on “health care directives,” “durable power of attorney for health care,” or “declaration as to medical treatment.” Note the specific requirements for signatures, witnesses, or notarization.

  • Check with the State Department of Health.
    Your state’s Department of Health or Department of Aging website often has a consumer section with plain-language guides and sometimes even state-approved forms. These resources can clarify if a non-statutory form like Five Wishes is acceptable.
  • Contact a Local Hospital’s Legal or Risk Management Department.
    Hospitals are on the front lines of implementing these documents. Their legal or risk management teams can tell you exactly what they require to accept and honor an advance directive. 
    Sample Email to a Hospital:
Subject: Question about Advance Directive Acceptance

Hello,

My name is [Your Name], and I am the health care agent for [Patient's Name]. We have completed a Five Wishes advance directive, signed on [Date]. Could you please confirm what your facility requires to place this document in their medical record and ensure it will be honored? Specifically, do you require an original copy, notarization, or specific witness qualifications?

Thank you,
[Your Name]
[Your Phone Number]
  • Contact Aging with Dignity.
    The organization behind Five Wishes provides state-specific information. Visit the Five Wishes state requirements page or call them directly. They often know about specific nuances, like needing an extra form in certain states.
  • Call the State Attorney General’s Office.
    The consumer protection or health care division of your state’s Attorney General can often point you to the correct statute or provide guidance on attestation requirements. 
    Sample Phone Script:
"Hello, I'm a family caregiver trying to ensure my mother's advance directive is valid. Can you please direct me to the statute or a resource that explains the signature and witness requirements for a health care power of attorney in [Your State]?"
  • Consult an Elder Law Attorney.
    For complex family situations, significant assets, or if you simply want absolute certainty, consulting an elder law attorney is the best course of action. They can review the document and confirm it aligns perfectly with your state’s laws.

Understanding Signature and Witness Requirements

The “attestation,” or how the document is signed and witnessed, is the most common point of failure. Here are the typical scenarios and what you should do.

Attestation Scenario Recommended Caregiver Action
Two Disinterested Adult Witnesses Required Find two adults who are not the named health care agent, not a beneficiary of the person’s will, and not a paid caregiver or facility employee. Neighbors or friends are often good choices. Ensure they sign and date the document at the same time as the declarant.
Notarization Required The person signing the document must do so in the physical presence of a licensed Notary Public. The notary will verify their identity and affix their official seal. Banks, libraries, and shipping stores often have notaries available.
Both Witnesses and Notarization Required This is less common but required in some states for certain documents. You must complete both steps, having the witnesses sign and then having the document notarized.
Either Witnesses OR Notarization Allowed Your state gives you a choice. Best practice is to get it notarized. A notary’s seal adds a layer of legal authority that is harder to challenge than witness signatures.
Attorney Recommendation Even if not legally required, having an attorney review and supervise the signing provides the strongest protection against future challenges, especially if capacity could be questioned later.

Making Five Wishes Work with Other Legal Documents

Powers of Attorney (POA)
Five Wishes includes the appointment of a health care agent, which functions as a health care power of attorney. If your loved one also has a separate DPOA for health care, ensure they don’t conflict.

  • Match the Details. The name and contact information for the primary and alternate agents should be identical in both documents.
  • Cross-Reference. To eliminate any ambiguity, you can add a clarifying sentence to each document. 
    Sample Language for Five Wishes:
"This document works in conjunction with my [State] Durable Power of Attorney for Health Care, signed on [Date]. If there is any conflict, the instructions in that document shall control."

Sample Language for the DPOA:
"My specific health care wishes, comfort care preferences, and personal requests are detailed in my Five Wishes document, signed on [Date]. I direct my agent to use that document as a guide for their decisions."

Guardianship and Family Disputes
Even with a perfectly executed Five Wishes, a family member could petition a court for guardianship, claiming your loved one was under undue influence or lacked capacity when they signed. To protect against this, preserve evidence of their intent.

  • Get a Doctor’s Note. Ask their primary care physician to write a brief, dated note for their file confirming they are of sound mind and capable of making their own health care decisions.
  • Use Qualified Witnesses. Have witnesses who are not family members write and sign a short, dated statement about the person’s clarity and willingness to sign.
  • Record a Statement. Where legally permissible, a short video of your loved one explaining their wishes and why they chose their agent can be powerful evidence.

Long-Term Care Contracts and Medicaid
An advance directive like Five Wishes does not directly impact Medicaid eligibility or the terms of a long-term care contract. However, the broader estate planning that often happens at the same time can. Be aware that gifting assets, changing property ownership, or creating certain trusts can trigger a penalty period for Medicaid eligibility. Always consult an elder law attorney before signing any irrevocable long-term care contract or making significant financial changes.

Caregiver’s Action Checklist

Use this checklist to prioritize your next steps after the document is completed.

  • Immediate Actions (Within 24 Hours)
    • Confirm the document is signed, dated, and attested correctly according to your state’s laws. If notarization is required or recommended, complete this step.
    • Make at least three copies. Give the original to the primary agent and a copy to the alternate.
    • Scan a digital copy and save it to a secure cloud folder accessible by you and the agent.
    • Prepare an emergency “Go-Kit” with a copy of Five Wishes, agent contact info, and a list of medications.
  • Within 7 Days
    • Deliver a copy to the primary care physician and ask them to add it to the medical record.
    • Upload a digital copy to any relevant patient portals (Electronic Health Records).
    • Create and fill out your “Who Has Copies” distribution log.
  • Within 30 Days
    • If your state has an advance directive registry, register the document.
    • Provide a copy to the local hospital your loved one is most likely to use.
    • If you have any doubts about legality or complex family dynamics, schedule a consultation with an elder law attorney.
    • Sit down with the health care agent to review the completed document, ensuring they understand and are comfortable with their role.
  • Annual Review
    • Once a year, or after any major health event, review the document with your loved one to ensure it still reflects their wishes.
    • Update contact information for agents if it has changed.
    • If changes are made, create a new document, have it signed and witnessed correctly, and distribute the new version, destroying all old copies.

Frequently Asked Questions

Can Five Wishes be used if the person moves to another state?
Yes, thanks to state reciprocity laws, a Five Wishes document that was legally completed in one state is generally honored in another. Despite this, the best course of action is to execute a new Five Wishes document that complies with the new state’s specific signing and witnessing rules. This proactive step helps prevent any potential delays or challenges from local health care providers unfamiliar with your previous state’s laws.

How does Five Wishes affect hospital admissions, emergency decisions, and in-home care?
During a hospital admission, you should provide a copy of the Five Wishes document to be placed in the patient’s medical record, ensuring the entire care team is aware of their wishes. For in-home care, it serves as a guide for the health care agent and caregivers. It is important to remember that in a medical emergency, EMS personnel can only follow direct medical orders; a Five Wishes document alone is not enough to direct them to withhold treatments like CPR without a supporting POLST or DNR order signed by a physician.

How do I update, amend, or revoke Five Wishes and how do I notify providers of changes?
The simplest way to update Five Wishes is to complete and properly sign a new one, as a new document automatically revokes all previous versions. To revoke it without creating a new one, you can destroy the original and all copies, or write “revoked” clearly across the front page and sign and date it. You must immediately provide copies of the new or revoked document to the health care agent, doctors, and any hospital or facility that had the old version on file to avoid confusion.

What should I do if a provider refuses to honor Five Wishes?
If a provider or facility refuses to honor the document, first ask them to state the reason for the refusal in writing. Then, immediately request to speak with a patient advocate, the hospital’s risk manager, or a member of the ethics committee. If the situation is not resolved promptly, it is time to contact an elder law attorney for immediate legal assistance to advocate for your loved one’s wishes.

Final Conclusions and Next Steps for Family Caregivers

Navigating the legal landscape of advance directives can feel overwhelming, but taking these final steps is one of the most powerful and loving things you can do for the person in your care. As we’ve discussed, Five Wishes is a uniquely comprehensive tool that gives voice to your loved one’s personal, spiritual, and medical preferences. However, its legal effectiveness isn’t automatic. The core takeaway is that while Five Wishes is widely accepted, its legal standing hinges on meeting your specific state’s execution requirements for witness signatures or notarization. Verifying these local rules is not just a formality; it is the critical step that transforms a document of wishes into a legally binding directive that doctors and hospitals must respect. By ensuring it is signed and witnessed correctly, you are protecting your loved one’s autonomy and providing clarity for everyone involved in their care, including yourself.

When to Consult an Elder Law Attorney

While Five Wishes is designed for clarity, certain situations are complex enough to warrant professional legal advice. You should strongly consider consulting an elder law attorney if your family’s situation involves any of the following:

  • Interstate Complexity. Your loved one splits their time between states or is planning a permanent move. An attorney can advise on creating a new directive or ensuring the existing one will be honored in the new location.
  • Complex Family Dynamics. If you anticipate that a family member may contest the directive or challenge the designated agent’s authority, an attorney can help create a more robust legal strategy to defend your loved one’s choices.
  • Medicaid and Long-Term Care Planning. If your loved one may need to apply for Medicaid to pay for long-term care, an elder law attorney is essential. While an advance directive itself doesn’t affect eligibility, it is part of a larger financial and legal plan that an attorney can structure correctly to preserve assets while qualifying for benefits.
  • Contested Incapacity. If there is disagreement about whether your loved one has the capacity to make their own decisions, an attorney can help navigate the process of a formal capacity assessment and protect them from undue influence.
  • Complex Long-Term Care Contracts. Before signing any admission agreements for assisted living, skilled nursing, or continuing care retirement communities, have an attorney review the contract, especially clauses related to end-of-life care and dispute resolution.

Authoritative Resources for Caregivers

You are not alone in this process. These organizations provide reliable information and support:

  • Aging with Dignity: The nonprofit creator of Five Wishes. Their website, FiveWishes.org, offers state-specific information, FAQs, and digital versions of the document.
  • State Departments of Health: Your state’s official source for health care regulations, including statutory advance directive forms and information on state registries.
  • National Academy of Elder Law Attorneys (NAELA): Provides a public directory to help you find qualified elder law attorneys in your area who specialize in advance directives, guardianship, and long-term care planning.
  • Administration for Community Living (ACL.gov): A federal agency that provides resources and information on a wide range of aging and disability topics, including advance care planning and caregiver support.

Taking these structured steps transforms uncertainty into action. By diligently verifying, distributing, and discussing your loved one’s Five Wishes, you honor their voice and lift a significant weight from your own shoulders. This is the final, crucial piece of the caregiving puzzle, ensuring that their values guide their care, no matter what the future holds. For optimal search visibility, we recommend a meta description that directly addresses the user’s primary concern about the legality of Five Wishes and offers a clear solution.

Suggested Meta Description: Is Five Wishes legally valid in your state? Our guide provides a clear caregiver checklist to verify, sign, and enforce this crucial advance directive.

References

  • FAQs – Five Wishes — An advance directive that meets the legal requirements of the state in which it was signed will be honored in all 50 states under reciprocity. Can I use the …
  • What You Need to Know About Five Wishes — Five Wishes meets the legal requirements of 46 states, including North Carolina, South Carolina and Virginia. Five Wishes is used widely in all …
  • states · Five Wishes — If you live in one of four remaining states (New Hampshire, Kansas, Ohio, or Texas) you can still use the Five Wishes advance directive but may need to take an …
  • Five Wishes: Understanding Its Legal Definition and Importance — Five Wishes is a legal document that allows individuals to express their preferences for medical care and personal treatment in advance. It functions as an …
  • Five Wishes – – Kokua Mau — Five Wishes® is and Advance Directive that can be ordered for $5 (plus s/h) from Kōkua Mau and is legally valid in 40 states. Five Wishes® in produced and …
  • New FW Video · Five Wishes — The original user-friendly advance directive used by more than 40 million people. As easy-to-use legal document written in easy to understand terms.
  • Five Wishes – Aging with Dignity — Five Wishes is the most popular advance care planning resource in the U.S. An individual copy costs the same as 25 years ago – just $5.
  • For Myself – Five Wishes — The original user-friendly advance directive used by more than 40 million people. As easy-to-use legal document written in easy to understand terms.
  • Home · Five Wishes — The simplest way to get the care you want and deserve. Providing peace-of-mind for more than 25 years. Learn More
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