The estate planning conversation should include a discussion about organ and tissue donation. Clients may have questions related to organ and tissue donation or may have reached a decision based on misinformation. Attorneys should be prepared to provide information and resources to the client so an informed decision can be made.

Typically, the primary focus of the estate planning process is on the client’s assets. Planning for incapacity and end-of-life care is just as important as planning for the distribution of assets; however, these topics usually do not receive as much attention in the estate planning conversation. In particular, the topic of organ and tissue donation can be overlooked. Clients may not know how to approach the subject or what questions to ask. Lawyers may shy away from this conversation because they are uncomfortable with the topic or lack the knowledge and information to provide meaningful advice to the client. Discussions about end-of-life care, including organ and tissue donation, are difficult because these hard choices can be emotional and involve medical, legal, religious and social aspects.1

The Oklahoma Rules of Professional Conduct permit lawyers to refer to these other aspects in advising clients. Rule 2.1 states, “[i]n rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”2 Comment 2 to Rule 2.1 states, “[a]lthough a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.”3 The decision to become an organ and tissue donor is certainly a personal decision; however, lawyers have a duty to competently advise their clients in these difficult decisions. This article is intended to provide an overview of organ and tissue donation in Oklahoma and answer related questions that arise in the estate planning practice.

APPLICABLE LAWS
The United States has adopted an opt-in organ donation system, meaning an individual must opt into organ donation by making the decision to be an organ and tissue donor. Some countries have adopted laws which make organ donation the default option at the time of death, and an individual would have to opt out of organ donation if they do not want to be an organ donor.4

The Uniform Anatomical Gift Act (UAGA) was first drafted in 1968 and has been adopted in some form in all 50 states.5 Oklahoma’s version of the UAGA can be found at 63 O.S. §2200.1A, et seq. The UAGA provides a legal framework for organ and tissue donation and transplantation processes. The latest revision of the UAGA added language to increase the focus on personal autonomy in the donation process. An individual’s decision to become an organ and tissue donor is a legally binding gift and is referred to as “first person authorization.” First person authorization cannot be amended or revoked by anyone other than the donor.6 Even if the donor’s family objects to donation, the donor’s decision is final and medical providers have an obligation to respect the wishes of the donor.

In 1984, Congress passed the National Organ Transplant Act which established the Organ Procurement and Transplantation Network (OPTN). The United Network for Organ Sharing is a private, nonprofit organization that administers the OPTN under federal contract. The OPTN maintains a national registry for organ matching and created a system of organ procurement organizations (OPOs) throughout the United States. OPOs are nonprofit organizations designated under federal law as the only organizations that can provide organ and tissue donation services.7 Oklahoma’s OPO is LifeShare Transplant Donor Services of Oklahoma. LifeShare works closely with transplant centers and health care organizations across the state of Oklahoma in performing the recovery of organs and tissue for transplantation. LifeShare also provides resources and education to help raise awareness for organ, eye and tissue donation.8

The donation and transplantation processes are heavily regulated by state and federal statutes and regulations.9 In addition, numerous federal agencies under the U.S. Department of Health and Human Services provide oversight of the processes.10 While this article is intended to provide resources and assist the estate planning attorney in guiding clients, it is not an exhaustive review of all applicable laws and regulations related to organ and tissue donation and transplantation.

HOW TO BECOME AN ORGAN DONOR
In Oklahoma, a competent individual can become an organ and tissue donor during the individual’s lifetime if the individual is over the age of 18, is over the age of 16 if eligible to obtain an Oklahoma driver’s license or is an emancipated minor.11 An authorized person can make an anatomical gift on behalf of someone else. The statute defines “authorized person” as the parent of an unemancipated minor donor, the guardian of the donor or the agent of the donor, so long as the power of attorney or other document does not prohibit the agent from making an anatomical gift.12

Becoming an organ and tissue donor can be as simple as authorizing the organ donation symbol be placed on the donor’s Oklahoma state driver’s license.13 An expired, suspended or revoked driver’s license will not invalidate the anatomical gift.14 A donor can also make an anatomical gift in a will.15 The gift designated in the will is effective upon death and without the necessity of a probate.16 A finding that the will is invalid after the donor’s death will not invalidate the gift.17 A donor who has a terminal illness or injury may make an anatomical gift by any means of communication if addressed to two adults, so long as one of them is a disinterested party.18 A donor may authorize an anatomical gift by signing an organ donation card or other record.19 If the donor is unable to sign, another individual may sign at the direction of the donor if the signature is witnessed by two adults, one of whom must be a disinterested party.20 A donor may also make an anatomical gift in the Advance Directive for Health Care form, which is discussed below.

A donor or authorized person can execute an amendment or revocation of an anatomical gift.21 If the individual is unable to sign, another individual may sign the amendment or revocation at the individual’s direction with the signature being witnessed by two adults, one of whom must be a disinterested party.22 An anatomical gift may be revoked if the donor or authorized person destroys the document making the gift with the intent of revocation.23 If the gift is made by will, the same methods allowed by law for revoking or amending wills are effective. In addition, a donor making an anatomical gift by will can amend or revoke the gift by signing a document to that effect.24

An anatomical gift of a donor will be honored at the time of death unless there is an express, contrary indication by the donor.25 At the time of death or removal of life support, if an individual has not made an anatomical gift and no express refusal to make an anatomical gift exists, the organ recovery team will approach the family or other authorized person and seek consent for organ and tissue donation. The following individuals, in the order named, may authorize organ and tissue donation of an individual at the time of death:

1. Agent of decedent so long as the power of attorney or other document does not prohibit the agent from making an anatomical gift;
2. Spouse;
3. Adult child;
4. Parent;
5. Adult sibling;
6. Adult grandchildren;
7. Grandparents;
8. Adult who exhibited special care and concern for decedent;
9. Guardian of the person; or
10. Any other person having authority to dispose of the body.26

Making a time-sensitive decision about organ donation immediately following a loved one’s death can be extremely burdensome and emotional, especially if the decedent’s wishes are not known by the decision maker. As part of the estate planning process, attorneys should discuss the significance of these decisions with clients as well as the importance of communicating wishes to loved ones to help relieve some of this burden.

ADVANCE DIRECTIVE FOR HEALTH CARE
In the estate planning practice, the discussion of anatomical gifting occurs most frequently when clients are executing the Oklahoma Advance Directive for Health Care form. The advance directive is a statutory form set forth in the Oklahoma Advance Directive Act.27 Clients completing the form can appoint a health care proxy and make advance decisions concerning the administration of life-sustaining treatment and artificially administered nutrition and hydration. The advance directive also includes a section for the client to complete if the client wishes to make an anatomical gift. While this article focuses on how the advance directive relates to organ and tissue donation, estate planners may wish to also refer to W. Thomas Coffman’s article “Advance Planning for End-of-Life Care in Oklahoma” for a broader overview of the advance directive as well as other end-of-life planning practices.28

In the anatomical gifting section of the advance directive, individuals may select the purpose or purposes for which the gift is being made from the following choices: 1) transplantation; 2) therapy; 3) medical science, research or education; and 4) dental science, research or education.29 These terms are not defined in the Oklahoma Advance Directive Act, nor are they defined in the UAGA, but comments to Section 4 of the Revised Uniform Anatomical Gift Act (2006) provide some guidance:

The terms “transplantation”, “therapy”, “research” and “education” are not defined in this [act]. Rather, they are defined by their common usage in the communities to which they apply. In general terms, transplantation refers to the removal and grafting of one individual’s body part into the body of another individual. Research is a process of testing and observing, the goal of which is to obtain generalizable knowledge, while therapy involves the processing and use of a donated part to develop and provide amelioration or treatment for a disease or condition. Education posits the use of the whole body or parts to teach medical professionals and others about human anatomy and its characteristics.30

The remaining portion of the anatomical gifts section of the advance directive asks individuals to choose what specifically they wish to donate, either the entire body or selected organs or parts.

If the donor selects more than one purpose on the form, the organ or part would first be used for transplantation or therapy, if found to be suitable.31 If the gift is not suitable for transplantation or therapy, it would then be used for research or education.32 If the gift is not suitable for transplantation, therapy research or education, the body or part passes to the person responsible for the disposition of the decedent’s remains.33

For an individual who is at or near death, the use of life support systems or other measures may be necessary to ensure the suitability of organs and tissue for transplantation. This presents a conflict if the donor completed an advance directive and selected that life-sustaining treatment and/or artificial nutrition and hydration not be administered to the donor. Under Section 14 of the UAGA, when a prospective donor who is at or near death is referred to an OPO, the OPO will conduct an examination to determine the suitability of the prospective donor’s organs or parts.34 During this examination, life support systems that ensure the viability of the organs or parts may not be withdrawn regardless of the prospective donor’s selection on the advance directive that life-sustaining measures not be administered.35 If the hospital knows the prospective donor has made an expression of intent to the contrary then the life-sustaining measures may be withdrawn.36 The statement in an advance directive or health care power of attorney that the individual does not wish to receive life-sustaining treatment and/or artificial nutrition and hydration is not considered an expression of contrary intent.37

Another potential conflict exists with the Oklahoma Physician Orders for Life-Sustaining Treatment (POLST). The POLST form is not an estate planning form, but rather a medical order that must be completed by a medical professional to address the patient’s current medical condition.38 The POLST form includes directions on the use of life-sustaining treatment.39 It is not clear if the execution of a POLST form directing physicians to withhold or withdraw life-sustaining measures would constitute an “expression of contrary intent” for purposes of continuing life support systems to ensure viability of organs or parts of a prospective donor. Estate planners should inform clients of the existence of the POLST and how it relates to the client’s estate planning documents.

Some feel that the requirement under Section 14 of the UAGA that life support systems be initiated or continued for the sole purpose of determining suitability for donation infringes on the individual’s right of autonomy, while others feel the requirement supports the individual’s decision to donate.40 It is clear a conflict exists within the UAGA, which is acknowledged in Section 21 of the UAGA. Section 21 provides that where such conflict exists, the physician shall attempt to resolve the conflict expeditiously by conferring with the donor, or if the donor is unable to confer, the donor’s agent or other person authorized by law to make medical decisions for the donor.41 This conflict can be avoided with advance planning if the attorney includes carefully drafted language in the client’s advance directive to more clearly state the client’s intent, such as stating that an exception to the withholding of life-sustaining treatment and/or artificial nutrition and hydration be made to allow for organ and tissue donation.

CONCLUSION
In advising clients about estate planning and end-of-life care, attorneys should include a discussion about organ and tissue donation and provide clients with information and resources to assist them in making an informed decision. In drafting estate planning documents, attorneys should ensure the documents reflect the client’s intent to avoid any conflicts at the time of death. Clients should be encouraged to communicate their decisions about end-of-life care and organ and tissue donation to their loved ones. Assisting clients in making informed decisions about organ and tissue donation and memorializing those decisions in the client’s estate planning documents will give the client peace of mind and provide clarity to the client’s loved ones and medical providers.

Common Myths

• I am too old to be an organ donor. There is no age limit on organ donation. The oldest organ donor in the United States was 92 years old and donated his liver.42
• It is against my religion. None of the major religions forbid the receipt or donation of organs or are against transplantation.43
• The doctors or emergency medical personnel will not try as hard to save me if I am an organ donor. The first priority of medical professionals is to save the patient’s life. Organ and tissue donation can only occur after death has occurred.44 The organ and tissue recovery team is separate from the treating physician and the treating physician’s team.45
• I can’t be an organ donor because of a past illness. Very few medical conditions or illnesses will prevent someone from being an organ or tissue donor. Active cancer or some types of infection would prevent donation.46 Physicians will make a determination about whether organs or tissue can be used at the time of death.
• I don’t want my family to be responsible for the cost of organ donation. The donor is not responsible for the cost of donation and neither is the donor’s family. The donor is responsible for all medical care up until the time of legal death and the costs associated with funeral, cremation and/or burial expenses.47
• I don’t want to have my funeral delayed. Organ and tissue donation should not cause a delay in the funeral or memorial services. The organ procurement team works as quickly as possible and will return the body to the family. Organ donation will not prevent an open casket funeral.48

ABOUT THE AUTHOR
Jennifer L. Wright is a senior attorney at Ball Morse Lowe and leads the Estate Planning, Probate and Elder Law Practice Group for the firm. She serves as the Membership Committee chair for the OBA Estate Planning, Probate and Trust Section. Ms. Wright is a 2005 graduate of the OCU School of Law.

1. Hank Dunn, Hard Choices for Loving People, at p. 10 (5 ed.) (2009).
2. Rule 2.1, ORPC.
3. Rule 2.1, ORPC, cmt 2.
4. See S. Davidai, T. Gilovich, & L. Ross, “The meaning of default options for potential organ donors,” Proceedings of the National Academy of Sciences, 15201-15205 (2012) (Psychologists examined beliefs of participants in opt-in and opt-out countries and determined that changing policies and laws in the United States to become an opt-out country would change individuals’ beliefs about organ donation from being a significant action to an insignificant action, which would result in an increase in donations.); see also L. Shepherd, R. E. O’Carroll and E. Ferguson, “An International Comparison of Deceased and Living Organ Donation/Transplant Rates in Opt-in and Opt-out Systems: A Panel Study,” BMC Medicine, 12:131 (2014) (Opt-out countries have a higher number of deceased donors, but a reduced number of living donors.).
5. See National Conference of Commissioners on Uniform State Laws, Revised Uniform Anatomical Gift Act (2006, last revised or amended in 2009), tinyurl.com/yasgbauo.
6. 63 O.S. §2200.8A (2009) (In the case of an unemancipated minor who dies, a parent may revoke or amend the minor’s gift or refusal.).
7. List of OPOs for each state, www.aopo.org/find-your-opo.
8. LifeShare’s website provides helpful resources and information, including the Donor Family Resource Guide, www.lifeshareoklahoma.org/family-services.html.
9. See organdonationalliance.org/organ-donation-toolbox-legal for a list of federal and state statutes and regulations; see also www.organdonor.gov/about-dot/laws/history.html for Statutory and Regulatory History of Organ Transplantation.
10. Federal agencies involved in the organ and tissue donation and/or transplantation processes include the Centers for Medicare and Medicaid Services, Centers for Disease Control and Prevention, National Institutes of Health, Agency for Healthcare Research and Quality and the Food and Drug Administration.
11. 63 O.S. §2200.4A (2009).
12. Id.
13. 63 O.S. §2200.5A(A)(1) (2009) and 63 O.S. §2211 (2004).
14. 63 O.S. §2200.5A(C) (2009).
15. 63 O.S. §2200.5A(A)(2) (2009).
16. 63 O.S. §2200.5A(D) (2009).
17. Id.
18. 63 O.S. §2200.5A(A)(3) (2009).
19. 63 O.S. §2200.5A(B) (2009) (To request an organ donation card, contact LifeShare at 800-826-LIFE (5433). A donor may also register online at www.lifeshareregistry.org/register.).
20. 63 O.S. §2200.5A(B) (2009).
21. 63 O.S. §2200.6A (2009).
22. Id.
23. Id.
24. Id.
25. 63 O.S. §2200.8A (2009).
26. 63 O.S. §2200.9A (2009).
27. 63 O.S. §3101.4 (2006).
28. W. Thomas Coffman, “Advance Planning for End-of-Life Care in Oklahoma,” Oklahoma Bar Journal, Vol. 78, No. 15, 1285-1290 (May 12, 2007).
29. Id.
30. National Conference of Commissioners on Uniform State Laws, Revised Uniform Anatomical Gift Act (2006, last revised or amended in 2009), tinyurl.com/yasgbauo.
31. 63 O.S. §2200.11A (2009).
32. Id.
33. Id.
34. 63 O.S. §2200.14A(C) (2009).
35. Id.
36. Id.
37. National Conference of Commissioners on Uniform State Laws, Revised Uniform Anatomical Gift Act (2006, last revised or amended in 2009), Comments to Section 14, tinyurl.com/yasgbauo.
38. 63 O.S. §3105.4 (2016).
39. Id.
40. J. L. Verheijde, M.Y. Rady & J. L. McGregor, “The United States Revised Uniform Anatomical Gift Act (2006): New challenges to balancing patient rights and physician responsibilities,” Philosophy, Ethics, and Humanities in Medicine: PEHM, 2:19 (2007), doi.org/10.1186/1747-5341-2-19.
41. 63 O.S. §2200.21A(B) (2009).
42. See www.organdonor.gov/about/donors/seniors.html.
43. P. Bruzzone, “Religious Aspects of Organ Donation,” Transplantation Proceedings, Vol. 40, Issue 4, 1064-1067 (May 2008).
44. 63 O.S. §3122, Declaration of Death (1986).
45. 63 O.S. §2200.14A(I) (2009).
46. More information on who can be a donor can be found at www.organdonor.gov/about/donors.html.
47. See www.lifeshareoklahoma.org/frequently-asked-questions.html.
48. 63 O.S. §2200.14A(H) (2009). See also cloud.3dissue.com/144102/144275/168702/DonorFamilyResourceGuideBooklet/index.html.