Case Study 2 - How do you handle after-death choices? (Organ/tissue donations, autopsy, burial, cremation)
Millie is 73 years old, and her health is rapidly failing. She wants to donate her organs to help someone else live a longer and healthier life. She also wants to be buried next to her second husband. Millie has three children -- two from her first marriage and one from her second marriage. The child from her second marriage has passed on, leaving Millie a granddaughter, Jenny.
Millie knows that her two surviving children, Fred and Ethel, are not comfortable with the concept of organ donation and that they want her buried next to their father. When Millie was admitted to the hospital, she was given information about a health-care power of attorney. In reading the document, she noted that her health-care agent has the power to make anatomical gifts and authorize the disposal of her remains.
She trusts her granddaughter, Jenny, to make these decisions on her behalf, knowing that Jenny will follow her wishes. Millie signs the documents with the appropriate witnesses and notary present and makes Jenny her health-care agent. She discusses her wishes with Jenny, who agrees to make sure that her organs will be donated, if possible, and that she will be buried next to her second husband.
Answers for Kentucky Residents
The following answers are based upon Kentucky law as of April 2006. Laws are subject to change, so please ask an attorney for answers to specific questions.
1. After signing the health-care power of attorney, Millie did all that she could do to ensure that her organs would be donated at her death.
- Kentucky Answer: False
- In addition to making known her wishes in her advance directive, Millie could have made a gift of all or part of her body (an “anatomical gift”) by will, by organ donor card, or by signing the back of her driver’s license. An anatomical gift made by will is effective for that purpose even if the will proves invalid. Like the will, an organ donor card or the anatomical gift statement on the back of the driver’s license must be signed by the donor in the presence of two witnesses. These gifts would become effective on Millie’s death. In addition, addressing the concerns of Fred and Ethel ahead of time might have made the gift go more smoothly.
2. After Millie’s death, Jenny will have first priority in deciding to donate Millie’s organs and bury her next to her second husband.
- Kentucky Answer: True and False
- While the health-care surrogate is authorized to honor a donor’s wishes with regard to anatomical gifts, the surrogate does not as such have authority to determine the final disposition of the body. Such arrangements should be detailed in a last will and testament or funeral burial document.
3. After Millie’s death, her children, Fred and Ethel, will have the right to determine whether her organs are donated and where she is buried.
- Kentucky Answer: False
- With regard to Millie’s organs, neither her health-care surrogate nor her family members are authorized to block her wishes. With regard to Millie’s burial place, its location will be governed by any will or funeral burial document she has signed.
4. Whoever makes these decisions on Millie’s behalf is legally bound to follow her oral wishes.
- Kentucky Answer: False
- Millie should properly document her desires concerning her burial place in a testamentary writing. Without such a writing, her oral statements are unenforceable. However, by virtue of her health-care surrogacy, Jenny may comply with Millie’s oral wishes with respect to anatomical gift, provided there is clear and convincing evidence of Millie’s unequivocal intent.
5. It depends upon whether Millie said “yes” to organ donation on her driver’s license.
- Kentucky Answer: False
- Saying "yes" to organ donation on her driver’s license is only one of the ways in which Millie could make an anatomical gift.
6. If Millie is competent up to the time that she dies, Jenny will not have the authority to donate Millie’s organs or arrange for her burial.
- Kentucky Answer: True and False
- Jenny’s authority to act as a health-care surrogate extends beyond Millie’s death only for the purpose of ensuring the completion of the anatomical gift.
Return to Advance Directives Case Study 2.
Return to the Communicate Your Advance Directives for Health Care learning lesson.
Credits
Adapted for use in the Legally Secure Your Financial Future: Organize, Communicate, Prepare program.
Content Development
Reviewed for use in Kentucky by:
Matthew Holland, law student,
Louis D. Brandeis School of Law, Samuel L. Greenbaum Public Service Program,
University of Louisville, Kentucky
Supervised by:
Ron Marstin, Urban Managing Attorney,
Legal Aid Society, Louisville, Kentucky
This information is provided as a public service and is designed to acquaint you with certain legal issues and concerns. It is not intended to be a substitute for legal advice, nor does it tell you everything you may need to know about this subject. Future changes in the law cannot be predicted, and statements in these materials are based solely on the laws in force on the date of release noted on this page.
This document is for non-profit educational purposes only. This document may not be used by a profit-making company or organization. When used by a non-profit organization, appropriate credit must be given to the Cooperative Extension Legally Secure Your Financial Future: Organize, Communicate, Prepare education program. Materials for this program were developed by a team from six land-grant universities. The program is included in the program toolkit of the Cooperative Extension Financial Security in Later Life national initiative. For more information go to: http://www.csrees.usda.gov/fsll.