Assessing the Legal Aspects of Organ and Tissue Donation

Organ Donor SignEstate planning often involves the preparation of Last Wills and Testaments, Powers of Attorney and Advance Directives for Health Care. It can also involve discussions and planning for long-term care. During that meeting, the option for tissue and organ donation should also be explored. An attorney’s main role is to get their client thinking about potential issues, including guardianship of special needs children, inheritance of property, what to do during incapacitation, etc. When a person is in a coma or legally suffering from “brain death” it is also an attorney’s job to ask how they want their organs and tissues handled.

Unfortunately, tissue and organ donation does not always become a topic of discussion. That is because some clients or even attorneys are too uncomfortable talking about it. It is important, however, that individuals understand that it is a viable option.

Opening the Discussion

By raising the issue of tissue and organ donation, and assisting clients with understanding their rights in regards to making provisions for doing such, an attorney can have a big impact on their clients’ lives as well as on the community.

In New York, competent individuals over the age of 18 years can authorize the donation of their own organs and tissues. This decision can be as quick as becoming a donor on their driver’s license. The driver’s license will then indicate that the individual is a legal “organ donor” and doctors at a hospital facility will be able to carry out their wishes.

Also, an individual can obtain an organ donor card from the Center for Organ Recovery & Education (CORE) by calling 1-800-donors-7 or by going to the core.org website to receive their card. The card must be signed not only by the donor, but in the presence of two witnesses.

Powers of Attorney and Organ Donations

Agents under the Powers of Attorney can also make anatomical gifts as long as they have the consent to do so by the individual. Parties that are authorized under New York law to make anatomical gifts include:

  • Spouses
  • An adult sibling
  • An adult child
  • A guardian of that individual
  • Parent of the individual
  • Anyone with the legal authority to donate the organs and tissues

Agreeing to the anatomical gift can be done in writing or via a recorded message.

The Last Will and Testament can also have specific language pertaining to organ donation wishes. Once the testator dies, the anatomical gift can be given without the need for probate.

Speak with a New York Estate Planning Attorney

If you want to become an organ or tissue donor, you can have language placed under your Powers of Attorney documents and in your Last Will and Testament regarding your wishes. Attorney Andrew M. Lamkin can assist you with drafting your will or revising it to address your organ and tissue donation concerns. Contact him for a free consultation at 516-605-0625 or contact us online.

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