Q.  My wife and I are about to prepare Advance Health Care Directives, with an option to donate our organs. I hear there is a new law that touches on this.  Do you know anything about this?

A.  Yes. The new law is AB 3211, effective January 1, 2019, and designed to make it easier for persons who use the statutory form Advance Heath Care Directive (“Directive”) to donate organs upon death.  If you use the basic statutory form, the law simplifies the check-off-the-box choices, reducing them from six down to only two.  It provides that—unless you opt out of organ donations—the default directive is that you have consented to same.  It also clarifies that your failure to opt for organ donation in the Directive, does not prevent your election to do so on your DMV Driver’s License.

The purpose behind the new law is to increase the number of available organs for life saving transplantation. Reportedly, there are 23,000 Californians awaiting lifesaving organ transplantations.

However, the most significant feature of the new law is to authorize the temporary medical procedures necessary for doctors to evaluate and/or maintain your organs and/or tissues for harvesting and transplantation.  This change was, I believe, designed to address the apparent inconsistency in a Directive, whereby an individual might opt not to prolong life if he/she were comatose, but whereby that same person had opted for organ donation.  Now, without violating your choice not to artificially prolong your life, it can nevertheless be temporarily prolonged just for the limited purpose of evaluating and maintaining your organs for transplantation. To me, this makes good sense and avoids the medical — legal dilemma that the transplant team might otherwise face.

Notwithstanding the new law, you may still opt out of organ donations, and you can also still specify for what purpose your organs may be used, i.e. transplant, therapy, research, or education.

Note: if you do not wish to make organ donations, you must specifically opt out on the form. If you fail to specifically opt out, but do not otherwise indicate that you do not wish organ donations, then an “authorized individual” on your behalf may still opt for organ donation after your passing.  An “authorized individual” would usually include a spouse or a Domestic Partner (as defined in the Family Code). However, apart from the decision to authorize organ donations, even a spouse or Domestic Partner may not be able to consent to the withdrawal of life-sustaining treatment; instead there must be “clear and convincing evidence” of your own wishes, and the decision as to whether that standard has been met would likely be up to a judge in the context of a legal proceeding brought for that purpose.

To be sure, the new law does not require that you use the statutory form. You may still prepare, or ask your attorney to prepare, a customized Directive suitable to your specific wishes.

So, if you and your wife wish to authorize organ donations, and you opt to use the new statutory form, be sure to verify that it complies with the new law, fill it out completely and make your wishes clear on the form.  To those readers who have already prepared Directives, I suggest that you review them to make sure your wishes are clear, and make it a point to discuss them with your designated Health Care Agents.

References:

Assembly Bill 3211, modifying CA Probate Code §4701; CA Probate Code §’s 4716 (Domestic Partner of patient has same status as spouse); CA Family Code § 297 (“Domestic Partner” defined); Probate Code §4643 (“surrogate” defined), and § 4711–4715 (health care surrogates).