Anatomical Gifts and Estate Planning
Posted Wednesday, September 24, 2014 by John S. Palmer
There are 2 statutes that come into play with respect to anatomical gifts in the estate planning context.
Washington has adopted the Uniform Anatomical Gift Act. RCW 68.64.030 states that an anatomical gift may be made during the donor’s life by “an agent of the donor, unless the power of attorney for health care or other record prohibits the agent from making an anatomical gift.”
Therefore when drafting a healthcare power of attorney, it is my practice clearly delineate the agent’s authority with respect to anatomical gifts. Depending on the client’s wishes, I generally provide that the agent may make advance arrangements for such gifts, may not make such gifts under any circumstances, or made do so only for organ donation purposes or to sustain a life, but not for research purposes.
RCW 68.64.080 sets forth the hierarchy for making an anatomical gift after the donor’s death. It says that unless the donor previously executed a document prohibiting such gifts, they made be made by an agent designated in a healthcare power of attorney, provided the agent had the authority to make such a gift while the donor was alive; if there is no such agent, they may be made by the surviving spouse or registered domestic partner; if none, they may be made by a member of the following classes, in the order of priority listed:
- adult children
- parents
- adult siblings
- adult grandchildren
- grandparents
- the person(s) acting as the decedent’s legal guardian at the time of death
If there is more than one member of any given class, the gift may be made by any member of that class, unless another class member objects, in which case the decision may be made by a majority of the class. A member of a lower-ranked class may not make an anatomical gift if there is a person in a higher class eligible to make the decision.
A related statute, RCW 88.50.150, establishes a similar hierarchy for controlling disposition of a person’s remains if they did not make their own advance arrangements for burial or cremation. It provides that such arrangements may be made by:
- The person designated in the applicable US Department of Defense documents, if the decedent died will serving in any branch of the armed forces, reserve, or national guard;
- A designated agent in a writing signed by the decedent. (Although an agent’s authority under a power of attorney typically ends at the death of the principal, I typically include a provision permitting the agent to make this post-death arrangement for disposition of the principal’s remains if the principal failed to make them);
- The surviving spouse or registered domestic partner;
- Majority of surviving adult children;
- Surviving parents;
- Majority of surviving siblings;
- Any court-appointed guardian of the decedent serving at the time of death.
As with post-death anatomical gifts, the highest available class makes any necessary arrangements. However if any member of that class has been arrested or charged with first or second degree murder or first degree manslaughter in connection with the decedent’s death, that person’s right to control disposition of the remains is revoked.
If you have any questions or would like to schedule an appointment, please call us at (425) 455-5513, toll free at (877) 455-5513, or info@palmerlegal.com.