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TCL > May 2000 Issue > Organ/Tissue Donation: A Lawyer’s Role

The Colorado Lawyer
May 2000
Vol. 29, No. 5 [Page  23]

© 2000 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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Features

Organ/Tissue Donation: A Lawyer’s Role

Organ and tissue donation is one of the most important bequests anyone can make. Attorneys involved in estate planning or who handle wills in their practices should ask clients if they wish to make organ/tissue donation a bequest after death. Such bequests are literally a "gift of life."

Donation and Family Consent

Lawyers first should ask clients whether or not they wish to be a donor. If the answer is "yes," they must document the donation in such a way that it is likely to be acted upon. Organ/tissue donation can be documented in a variety of ways (see "Legal Documents" on the next page). Moreover, it is critical that clients inform their next of kin of the donor’s wishes prior to death. This cannot be overemphasized. Although consent of kin is no longer legally required,1 in practice, consent is always sought by the organ/tissue procurement agency or a trained hospital staff member acting as its agent. For this reason, organs and tissue are not recovered unless family members consent.

When family members do not know their loved one’s wishes until the time of death, they withhold their consent almost half of the time. Quite often, this means that, in effect, the family overrides the valid legal wishes of the would-be donor. However, when family members are aware of their loved one’s wishes ahead of time, the chance of the family giving consent nearly doubles. Thus, attorneys are encouraged to advise their estate planning clients to notify their families promptly and clearly about their organ and tissue donation wishes. Informing family members ahead of time also spares the family the burden of making an intensely personal decision at an extremely emotional time or provoking a family disagreement at the time of death.

As the federally designated organ and tissue procurement agent for Colorado and Wyoming, Donor Alliance recommends using the following family notification letter:

Dear (Family Member):

I want you to know that I have decided to become an organ/tissue donor upon my death, and have signed a legal document to that effect. I consider becoming an organ donor an important legacy of my life, as it will mean a better life or even life itself to those who receive my donations.

While your consent is not legally required for donation to take place, I want you to honor my wishes to be an organ/tissue donor by providing your consent if asked.

Signed: _____________________________________________

Date: _________________________

For purposes of organ/tissue donation, next of kin is defined in the following order of priority: spouse, adult son or daughter, either parent, adult brother or sister.

Estate Planning Checklist

Because organ/tissue donation is such a significant bequest, lawyers should include the following questions as part of their standard estate planning questionnaire.

• Do you wish to be an organ and tissue donor?

Self: ___Yes    ___No
Spouse (if applicable): ___Yes    ___No

• If yes, have you signed an organ and tissue donation donor card or indicated on your driver’s license your intent to be an organ and tissue donor?

Self: ___Yes    ___No
Spouse (if applicable): ___Yes    ___No

• Have you told your family about your intention to be an organ and tissue donor?

Self: ___Yes    ___No
Spouse (if applicable): ___Yes    ___No

Legal Documents

Organ/tissue donation can be documented in a variety of ways (see Uniform Anatomical Gift Act, CRS § 12-34-105). A declaration regarding anatomical gifts should not be put in a will because such a bequest is not effective for organ/tissue donation. Wills are often not examined closely until days after death when organ or tissue recovery is no longer possible.

However, the Colorado state driver’s licenses and identification cards currently being issued contain a "donor field" on the front, in which a "Y" indicates that the gift becomes effective upon the death of the donor. The back of new driver’s licenses and identification cards also contain the following language, which the driver can sign at a later date:

I hereby make an anatomical gift, to be effective upon my death, of:

A. ___Any needed organs/tissues
B. ___The following organs/tissues: ______________________
Donor signature: _______________________________________

Note that the signature of witnesses is no longer required; nor are they required on donor cards, which are also legal declarations. On older driver’s licenses and identification cards, a donation can be declared by signing the "Anatomical Gift" form on the back.

Another alternative is a formal document that, unlike a standard will, is likely to be available and referred to near the time of death. Such formal documents also are addressed in the Colorado Revised Statutes, which specify the use of the same wording as on the driver’s license "or in substantially similar form." These are (1) CRS § 15-14-506, Durable Power of Attorney; (2) CRS § 15-14-603, Power of Attorney; and (3) CRS § 5-18-104, Declaration as to Medical or Surgical Treatment.

A fourth statute (CRS § 15-18.6-103, Directive Relating to Cardiopulmonary Resuscitation) offers a different form, specifying tissue donation only:

I hereby make an anatomical gift, to be effective upon my death, of:

A. ___Any needed tissues

B. ___The following tissues:
    ___Skin
    ___Cornea
    ___Bone, related tissues, and tendons

Donor signature: _______________________________________

These "Do Not Resuscitate" directives do not include organ donation because they are not applicable in situations where organs from brain-dead persons are donated, the only persons from whom organs can be donated.

NOTE

1. CRS § 12-34-103(6). Unless held for purposes specified in CRS § 30-10-606, an anatomical gift that is not revoked by the donor before death is irrevocable and does not require consent or concurrence of any person after the donor’s death.

ORGAN AND TISSUE DONATION FACTS

• Each year, some 4,000 Americans die waiting for an organ transplant.

• Sixty-three Coloradans died waiting for a transplant in 1999.

• Over 1,000 people in Colorado and Wyoming are waiting for an organ transplant.

• More than 68,000 Americans are waiting for life-saving organ transplants.

• Hundreds of thousands more Americans need tissue transplants.

• Tissue donations can be accepted from persons who die from a variety of causes, not just brain death, as required for organ donation. Tissue donations, in particular, may be accepted from persons of any age.

• Dozens of lives can be saved or enhanced as the result of just one donor.

For a free Decision Kit containing a Family Donor Agreement and complete information on organ/ tissue donation, contact Donor Alliance, 3773 Cherry Creek North Dr., Suite 601, Denver, CO 80209; (toll-free) (888) 329-4747 or (888) 868-4747; www.donoralliance.org.

© 2000 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2000.


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