Michigan Expands Laws. Effective May 1, 2008, Michigan adopted the Revised Uniform Anatomical Gift Law, which amended, expanded and replaced many of the provisions of the original 1978 statute.
Drivers licenses and the Secretary of State’s Registry have been the primary method for expressing willingness to make an anatomical gift at death. Paramedics and ambulance crews are experienced in reviewing the back of your drivers license to see if there is any indication of a willingness a make an anatomical gift. However, let’s face it, most of us don’t like to think about this subject. I would venture a guess that very few people have made a donor intent known by inscribing the back of their drivers license and, more probably, have not registered with the Secretary of State for electronic recording of a willingness to make an anatomical gift.
Expression By Will. Our Estate Planning Questionnaire contains a space for indicating a desire to make an anatomical gift at death. Frankly, a relatively small percentage of clients make such wishes known in their Will.
The new statute broadly defines a document of gift to include donor card or "other record used to make an anatomical gift", which would include a Will.
In the event of an accident, or in the event of many medical interventions, a donor’s Will simply is not available. Its contents may not be known to family and friends, much less hospital and doctors.
How To Address the Problem. The new statute, MCL 333.10112 makes it mandatory for any person rendering medical assistance to make a reasonable search of an individual for indication of donor intent or refusal. This obligation is imposed on medical professionals, hospitals, law enforcement officers, fire fighters, doctors or other emergency rescuers. This new provision does not impose civil or criminal liability so has no practical teeth.
From an estate planning standpoint, however, the important point is make donorative intent, if any, known to medical professionals and the family. Generally, clients who want to make anatomical gifts have strong feelings on the subject. Those intentions may or may not be made known to spouses, children or other friends and relatives.
Medical Power of Attorney. It appears, therefore, that clients who have a serious intent for anatomical donations at death should:
1) Make a notation on their drivers license.
2) Register with the Secretary of State.
3) Alternatively, or including any of the above, make a specific provision in his or her Will.
4) Finally, if the only action taken is a provision in a Will or Codicil, we recommend a provision in the Medical Power of Attorney (Patient Advocate Designation) making known that there is an anatomical gift provision in the patient’s Will. Typically, if there is a hospital stay, the Patient Advocate Designation is available and referred to.
Recommendation. Refer to your Medical Power of Attorney, whether the printed form such as Five Wishes or the document drafted by us. If you have a serious intent to make an anatomical gift, in the event of death, make sure your MPOA has a reference to your intention and your Will, if you have made provisions there of your intentions to make an anatomical gift.
Decisions by Relatives. The new Michigan statute has an expanded list of individuals who are authorized to make anatomical gifts at death, provided there is no clear intention that a decedent has refused to make such gifts or has issued instructions barring any anatomical gifts, whether for transplants or research. Similarly, the new law contains provisions for oral instruction, positive or negative, and the revocation of previous instruction.
Moreover, the new law contains provisions for reconciling any differences that might occur between the administration of care and potential medical treatments.
Gruesome Subject. We realize that this is not a typical subject for dinner table conversation. However, it is receiving increasing attention as a result of medical advances. If your feelings are strong one way or the other about organ donations, we suggest we make your wishes known in your Will or Codicil and in your Medical Power of Attorney. For many people, this is not a subject of concern and debate. However, if this is a matter of concern to you and you wish to add an anatomical provisions to your Will and/or to your Medical Power of Attorney, we will be happy to assist you and prepare the necessary documentation for nominal fee of $50 for simple provisions.
If you have any other matters of concern concerning your existing estate planning documents, please contact Jim Modrall or any of the attorneys listed below.
Donald A. Brandt, Joseph C. Fisher, Thomas R. Alward, Matthew D. Vermetten, Thomas A. Pezzetti, Jr., Susan Jill Rice, Gary D. Popovits, H. Douglas Shepherd, Laura E. Garneau and David H. Rowe at (231) 941-9660
©BRANDT, FISHER, ALWARD & PEZZETTI, P.C.
*These articles are meant strictly for informational purposes. Nothing contained therein should be construed as legal advice.
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