Estate Planning for Health Care During Incapacity: Organ Donation & Advance Medical Directives

Written by: Jeremy Pryor

Posted on: March 7, 2018

Blog post written by Jeremy L. Pryor, Esq.

Occasionally when we meet with clients to sign an advance directive and we discuss the section of the document authorizing anatomical gifts (organ donation), they say something like, “I don’t want the doctors to take any halfway measures when my life is on the line, and so I’m not going to include this part.” While there are a number of good reasons to decide against being an organ donor, this really is not one of them. Doctors have the highest ethical duty of care to their patients, and risk serious civil liability if they fail to provide it. Thus this type of imagined response from medical professionals is mostly an urban legend.

What’s not an urban legend is the length of the organ donor waiting list in the United States and around the world. Over 100,000 people in the US are waiting for a transplant, and there are not nearly enough organ donors registered to meet the demand.  Unfortunately this does make the black market for organ donation a very real phenomenon, as illustrated in the movie Dirty Pretty Things.  The movie portrays this black market at work in the lives of illegal immigrants and would be legal immigrants who trade kidneys for cash and passports.  While undoubtedly dramatized for cinematic effect, the black market for organ donation has been verified by journalist research, and is a very real consequence of the shortage of registered organ donors.  Given that an overwhelming majority of Americans support organ donation, it’s also a situation that can be easily remedied by executing an advance directive.

In Virginia, an advance directive is typically a combination of three things: a healthcare power of attorney, a living will, and an anatomical gift authorization. It must be witnessed by two adults, and generally must be in writing and signed by the declarant.  Virginia has authorized a statutory form for advance directives and, while any document that meets the requirements is legally valid, departing to a significant degree from the statutory form can make it more difficult for medical providers to easily read and understand your wishes.  The Virginia form also includes a number of optional sections and opportunities for providing specific custom instructions that can be utilized to ensure a personalized document.

Estate planning for incapacity generally requires that you plan for two types of decisions that may need to be made if you were to become incapacitated: financial decisions and medical decisions.  An advance medical directive is an essential requirement for planning to address the medical side, and is something that every complete estate plan includes.  We discuss the details of these documents and how to effectively draft them in more detail at our regular monthly seminars. We hope you’ll join us the next time we’re near you!

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