Was the Five Wishes advance-directive form legally binding in South Carolina in 2005?

Plain-English summary

A legislator asked whether a completed Five Wishes document would bind a South Carolina patient’s family and medical professionals. The AG compared the sample form with the state’s Death with Dignity Act declaration and health care power of attorney forms. He concluded that the sample did not conform sufficiently to either statutory form and therefore would not be legally binding absent specific statutory or judicial approval.

The opinion still recognized a narrower use: Five Wishes could document a person’s preferences about life-sustaining procedures and other matters. It did not replace the documents then authorized to express legally operative health care decisions.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the reviewed Five Wishes form meet South Carolina’s statutory form requirements?
The AG said no. He found it did not substantially match either the statutory declaration or the health care power of attorney form.

Was the document meaningless if it was not binding?
No. The opinion said it could serve as evidence of a person’s personal wishes, even though it did not substitute for a legally authorized directive.

Did the AG say every form called Five Wishes would always be invalid?
He assessed the sample submitted to him under the 2005 statutes and said binding use would require specific statutory or judicial approval.

Background and statutory framework

The letter compared the form with the Death with Dignity Act and the health care power of attorney statute. Both required a document substantially in the statutory form then prescribed.

Citations and references

The original text says the sample “does not sufficiently conform with the particulars of either authorized procedure.”

Official title

Questioned whether the Five Wishes document if completed by an individual in this State would be legally binding on that individual’s family and on medical professionals attending the individual.

Requester

The Honorable Vida O. Miller, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-29-2005-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05march-29Miller.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsn.R
ATIORNEY GEi"IERAL

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March 29, 2005

The Honorable Vida 0. Miller
Member, House of Representatives
P. 0. Box 3157
Pawleys Island, South Carolina 29585
Dear Representative Miller:

In a letter to this office you questioned whether the Five Wishes document if completed by an individual in this State would be legalJy binding on that individual's family and on medical professionals attending the individual. According to the sample document forwarded to this office, a Five Wishes document is
... the first living will that talks about your personal, emotional and spiritual needs as well as your medical wishes. It lets you choose the person you want to make health care decisions for you if you are not able to make them for yourself. Five Wishes lets you say exactly how you wish to be treated if you get seriously ill. Two different statutory provisions establish means for an individual in this State to indicate his or her wishes as to when life-sustaining procedures may be withheld, the Death with Dignity Act, S. C. Code Ann. §§ 44-77-l 0 et seq. (2002) and provisions authorizing a health care power of attorney, as set forth in S.C. Code Ann. §§ 62-5-504 (Supp. 2004). Both provisions are quite specific in establishing the types of documents to be executed in order for an individual to express his or her will regarding life-saving treatment. Pursuant to Section 44-77-50, the form of the declaration for the Death with Dignity Act "must be substantially" in the form as set forth by that statute. Similarly, a health care power of attorney must be "substantially" in the form as set forth by Section 62-5504(D). As stated in a prior opinion of this office dated October 26, 1987, the term "substantially" has been defined as " essentially", "without material qualification" and "materially" . Based upon my review, it is my opinion that the Five Wishes document does not sufficiently conform with the particulars of either authorized procedure, the Death with Dignity Act nor the health care power of attorney, as to the form to be executed. As a result, it is my opinion that the Five Wishes document would not be legally binding in this State in the absence of specific statutory or judicial approval of the utilization of the fonn for its intended purpose. Support for such a

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The Honorable Vida 0. Miller
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March 29, 2005

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determination is set forth in the sample Five Wishes document which you forwarded to this office. As set forth at page five, "(i)f you live in the District of Columbia or one of the 35 states listed below, you can use Five Wishes and have the peace of mind to know that is substantially meets your state's requirements under the law .. .Ifyour state is not one of the 35 states listed here, Five Wishes does not meet the technical requirements in the statutes of your state." South Carolina is not one of the thirty-five states listed. Of course, while not legally binding, such document could serve as documentation of the personal wishes of an individual with regard to life-sustaining procedures or other matters covered by the document. The Five Wishes document however would not be a substitute for expressions of will which may legally be provided for only by documents executed pursuant to the Death with Dignity Act or as a health care power of attorney. If there are any further questions, please advise.

Sincerely,

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Charles H. Richardson
Senior Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Assistant Deputy Attorney General