Law Office of John S. Palmer Attorney at Law

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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:

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:

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.

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Law Office of John S. Palmer11911 NE 1st St, Ste. B204,Bellevue, WA 98005-3056