By Robert J. Green
As I read an article about a local family’s experience with organ donation on the front page of last Sunday’s newspaper, my mind went immediately to the many conversations I have had with my clients about this topic. There are several things I think we should all understand about how Idaho law addresses the issue of organ donation and how we can use our estate planning documents to help make sure our wishes on this topic are followed.
It is important to know that in Idaho the law addresses organ donation from two standpoints: donations authorized while the donor is alive (but death is certain and immanent) and donations authorized immediately after the donor’s death. The law makes clear that we each have the right to direct whether or not we have pre-authorized donation of part or even the whole of our bodies. Unfortunately, many Idahoans do not take the steps to create clarity on this point. There are three steps I discuss with my clients in this regard:
1) Identifying yourself as a donor on your Idaho driver’s license or Idaho issued ID card. This is the step that most people have taken (if they have taken any steps) and they wish to pre-authorize donation. This is an important step, but not the only one.
2) Registering your wishes on the YesIdaho.org website (either with the online registration found there, or by printing and submitting the printable form). This registration process is simple, and the Yes Idaho Donor Registry is managed by Intermountain Donor Services, the federally designated, non-profit organ procurement organization that serves the Intermountain West. The document is legally binding, so discussing it with your estate planning attorney before submitting it is highly recommended. There is also a way to make changes to your already submitted registration form on the YesIdaho.org website.
3) You can address the issue of authorizing your Health Care Agent (your surrogate health care decision maker) to approve donations by having language in your Health Care Power of Attorney that lays out what your Health Care Agent is and is not allowed to do in this regard. Often, clients have asked whether this authorization should be in their Last Will and Testament (“Will”). Your Will is a document that is rarely looked at by anyone other than you until after your death – and certainly your doctor or attending health care providers at a hospital are unlikely to have ever read your will. For this reason, while it may not hurt to have your wishes about organ donation in your Will, your Health Care Power of Attorney document is the superior place to have this information.
A final thought on this topic relates to what would happen if you have not specified your wishes about organ donation in your estate plan. Many of my clients are surprised to learn that by not addressing this matter in their legal documents, default Idaho laws will step in to authorize a series of persons (in a specific order of priority) to consent to organ donation on their behalf. Consequently, for my clients that specifically wish that no organ or body donation be allowed, it is very important that we address this topic in their estate planning documents.
If you have not addressed this topic in your documents and are still alive but incapacitated (and death is certain and immanent), the law will generally allow the following persons to authorize donations on your behalf (in the order of priority presented): your Health Care Agent as named in your Health Care Power of Attorney document (unless the power of attorney for health care or other record prohibits the agent from making an anatomical gift), then your parent (if you are an unemancipated minor), and finally your court-appointed Guardian. (See Idaho Code 39-3404).
If you have not addressed this topic in your documents and are deceased, the law will generally allow the following persons to authorize donations on your behalf (in the order of priority presented): your Health Care Agent at the time of death as named in your Health Care Power of Attorney document (unless the power of attorney for health care or other record prohibits the agent from making an anatomical gift), then your living spouse, then your adult children, then your living parent(s), then your adult sibling(s), then your adult grandchild/grandchildren, then your living grandparent(s), then “An adult who exhibited special care and concern” for you, then the person(s) who were acting as your court-appointed guardian(s) at the time of your death, and finally “any other person having the authority to dispose of the decedent’s body” (See Idaho Code 39-3409).
There are all sorts of exceptions and clarifications of these general rules that could apply to the ultimate outcome of any given situation, so it is very important that you discuss your particular situation and wishes with a competent estate planning attorney in order to have confidence that your desires will be accomplished. Some law firms, such as my own, will offer you a free consultation to come discuss these topics and even review any of your existing documents to be sure they will accomplish your desired outcomes.
This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.