How to Ensure That Your Organ Donation Wishes Are Honored

Farr Law Firm Advance Medical Directive

Ted was a hard-working plumber who died from an unexpected heart attack at the age of 53. He was very chatty and often talked to his clients about what was on his mind while he worked. One of his clients, Rachel, recalls that he mentioned his desire to donate his organs, should anything happen to him, to help others in need. Other clients of his remember the same conversation, but recall that he made it perfectly clear that although he would donate his organs, he couldn’t fathom the idea of donating his skin, tissue, and bones. He checked off the box at the Department of Motor Vehicles (DMV) to be an organ donor thinking it was enough, and he never did estate planning. When he died, his organs were donated, but so were his bones and skin, a fate he never would have wanted.

It can be hard to think about what’s going to happen to your body after you die, let alone donating your organs and tissue. However, since more than 120,000 organs are needed in the U.S.and thousands are needed in Virginia alone, many people see organ donation as a way to save a life. For those who want to donate to help others or to advance science, the first logical thought is often to visit the DMV and check the “organ donor” box on their driver’s license renewal or register with the state organ donor database, but this is far from enough.

What many don’t realize is that declaring an intention to be an organ donor should involve more than a simple checkbox at the DMV and a “heart” symbol on your driver’s license, unless you are okay with not having a say in what body parts will be donated and how they will be used. What if, as in the example above, you want to donate your organs for transplant, but not your skin, bones, tissue or entire body to science? What if you only want to donate specific organs, such as a kidney, and you want it to go to your cousin Fred who is undergoing dialysis and is in need? What if you are intent on having an open casket funeral and don’t want your skin donated? Without estate planning documents, specifically a properly-drafted Advance Medical Directive, you don’t really have a say in these important details.

In addition, if you don’t leave instructions about organ donation, your next of kin will make the decision about whether or not to donate your organs. For adults, the right goes to the following people, in order (Virginia Code § 32.1-291.9):

1.your agent, if you appointed one, unless the appointing document explicitly withholds this power

2.the “guardians of your person” at the time of your death

3.your spouse

4.your adult children

5.your parents

6.your adult siblings

7.your adult grandchildren

8.your grandparents

9.an adult who exhibited special care and concern for you, or

10.any other person who has the authority to handle the disposition of your body.

 

Do you really want your daughter who is a med student deciding that your body should be used as a cadaver, when you didn’t want to donate organs in the first place, but never made your desires known? Probably not!

An Advance Medical Directive authorizes another person to make decisions with respect to your medical care in the event that you are physically or mentally unable to do so, as certified by two physicians. Below is an example of the language and wishes you can convey regarding organ donation, in your Advance Medical Directive at The Farr Law Firm.

If any of my tissue or organs would be of value for transplant, I freely give my permission for the donation of such tissue or organs for:

___ Transplant

___Therapy

___Medical or educational uses

___Any purpose authorized by law

___I wish to donate any of my organs or tissues for transplant, but only to a blood relative.

___I wish to donate only the following organs or tissues for transplant:  ______________

___I do not wish to donate any of my organs or tissues for any purposes.

___ I have no preference regarding organ or tissue donation and I authorize my Agent to make this decision.

___Other: ______________________________________________________________

If you’ve documented your desire about whether or not to be an organ donor and your preferences in the matter, your wishes must be honored whether or not others agree with your choice (Virginia Code § 32.1-291.8.) Nevertheless, to avoid confusion or delays, it’s important to tell others that you feel strongly about donating or not donating your organs and that you have an Advance Medical Directive. Consider discussing the matter with family members, your health care providers, and close friends.

Once you have your documents in place, how can your loved ones locate them when they are needed? At The Fairfax and Fredericksburg Elder Law Firm of Evan H. Farr, P.C., we offer a service called DocuBank to ensure that that the documents you’ve completed will be there when you need them most, such as when you are hospitalized. DocuBank is an electronic storage and access service for healthcare directives and other legal documents, so your documents are available whenever you need them. Read more about Docubank in our blog post, FAQ: Storing Important Documents, such as Advance Medical Directives.

Whether or not you feel strongly about organ donation, it is important to make your intentions known in an Advance Medical Directive if you want your wishes to be honored. In fact, every adult over the age of 18 should have an Incapacity Plan that includes a Financial Power of Attorney, an Advance Medical Directive, and an Advance Care Plan. If you don’t have an Incapacity Plan in place, now is the time to get started.  Please call us at our Virginia Elder Law Fairfax office at 703-691-1888 or at our Virginia Elder Law Fredericksburg office at 540-479-1435 to make an appointment for a no-cost consultation.

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.

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