So You Want to be a Cadaver? Understanding the Uniform Anatomical Gift Act

In March, Dick Cheney received a heart transplant and Richard Norris a 37 year old shooting victim received the most complete facial transplant to date (including new jaw, tongue and teeth). About a year ago Charla Nash, the woman mauled by her friend’s chimpanzee, received a face and hand transplant. Susan Whitman’s husband, Joseph Helfgot died during a heart transplant operation. Ms. Whitman told The Boston Globe that she was surprised that the organ bank called and asked her if she would authorize a facial transplant. She immediately spoke to her children and the family immediately agreed to it. In the interview she stated, “It’s easy to sign up and say you are an organ donor. It is another to have your family understand and facilitate that. It is painful and takes strength and a will to do it.”

Medical science is advancing. An increasing number of individuals wish to make anatomical gifts for the purposes of transplantation or medical research. The Uniform Anatomical Gift Act (the terms of which when enacted varies from state to state) standardizes the rules concerning organ and tissue donation. Anatomical gifts may be made during life, or more commonly, after death. 

In most states a donor, or his or her health care agent, may make an anatomical gift in several ways, including: 

  1. By a statement or symbol to be imprinted on the donor’s driver’s license or identification card;
  2. By Will – (An anatomical gift made by Will, shall take effect upon the donor’s death whether or not the Will is probated. Invalidation of the Will after the donor’s death will not invalidate the gift);
  3. By verbal communication to two witnesses during a donor’s terminal illness or injury
  4. By a donor card or other record signed in the presence of two witnesses or by inclusion on a donor registry.

If the deceased individual did not make a lifetime choice to make an anatomical gift and the Will is silent then certain authorized persons can make the gift for the deceased individual. In most states the persons who can do so (in order of priority) are the health care agent, spouse, adult children, parents, adult siblings, adult grandchildren, grandparents, an adult who exhibited special care and concern for the decedent, the persons who were acting as guardians at the time of death and any person who has the authority to dispose of the decedent’s body. If there is more than one member of the class entitled to make the decision that person can do so unless they know of an objection by another member of the class. If there is an objection then the gift may be made only by a majority of the members of the class who are reasonably available. 

An anatomical gift can be changed or revoked. A person can also refuse to make an anatomical gift. This refusal can be done in writing or, in some circumstances orally. A refusal can also be made in a Will. 

The gift can be made to the following persons or organizations: 

  1. A hospital, accredited medical school, dental school, college or university, organ procurement organization or other appropriate person for research and education.
  2. An individual recipient of the part, as designated by the person making the anatomical gift.
  3. An eye bank or tissue bank.

As with most estate planning decisions, the question of whether or not to make an anatomical gift is a personal one. It is wise for you to consider now whether or not you would wish to make an anatomical gift and state your intent to those who would make that decision if you are unable to do so. For those who wish to make an anatomical gift you should make that gift in your Will. And, now that in many states your health care agent has the power to make an anatomical gift on your behalf during your lifetime you should consider updating your health care proxy to either prohibit him or her from exercising the power, or to outline the desired scope of limitations of your proxy’s ability to exercise this power. 

The official U.S. Government website for organ and tissue donation and transplantation, http://www.organdonor.gov, is maintained by the U.S. Department of Health and Human Services. A downloadable donor card can be found at http://organandonor.gov/donor/index.htm. 

All fifty states and the District of Columbia have enacted statutes based on the Uniform Anatomical Gifts Act. The law varies from state to state and should be reviewed prior to making an anatomical gift. 

Certain organizations promote organ donation. The Organ Procurement and Transplantation Network (OPTN) is the universal transplant network. It is a private non profit organization and operated under a federal contract with the U.S. Department of Health and Human Services. Its goal is to increase and ensure the effectiveness, efficiency and equity of organ sharing in the national system of organ allocation and to increase the supply of donated organs that are available for transplantation. The UNOS website, www.unos.org, provides information about transplant centers in various geographic areas and about the donation of particular organs.  Donate Life America (www.donatelife.net) promotes organ donation. Its website provides general information about organ donation and contains information on organ donation in each of the 50 states and the District of Columbia. MatchingDonors.com (www.matchingdonors.com) is a non profit organization that matches persons needing an anatomical gift with prospective donors. 

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently released an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  To download Annino’s FREE eBook, Estate Planning 101 visit, http://www.patriciaannino.com.

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