I have written in this blog about the importance of organ donations and the legal implications associated with those gifts. (See “Wait, Don’t Throw That Away, September 2008). Recent developments in our legislature underscore the continued importance of maintaining a pulse on this constantly changing area of the law.
As of January 2006, there were over 92,000 individuals on the waiting list for organ transplantation, and the list keeps growing. It is estimated that approximately 5,000 individuals join the waiting list each year. See “Organ Donation: Opportunities for Action,” Institute of Medicine of the National Academies (2006). According to the Prefatory Note to the Revised Uniform Anatomical Gift Act, recent technological innovations have increased the types of organs that can be transplanted, the demand for organs, and the range of individuals who can donate or receive an organ, thereby increasing the number of organs available each year and the number of transplantations that occur each year. Nonetheless, the number of deaths for a lack of available organs also has increased. The Commissioners who drafted the Uniform Law encouraged states to adopt its provisions since 2006 “because current state anatomical gift laws are out of harmony with both federal procurement and allocation policies and do not fully respect the autonomy interests of donors, there is a need to harmonize state law with the federal policy as well as to improve the manner in which anatomical gifts can be made and respected.”
The Florida Legislature responded by recently drafting Senate Bill 766 which was approved by the Governor and went into effect on July 1, 2009. This bill revises Florida’s anatomical gift law to incorporate a variety of issues addressed in the Uniform Anatomical Gift Act of 2006. The highlights from the legislation are listed below.
The new statute codified at Fla.Stat.§765.511 et seq. added the definition of what constitutes “reasonably available, which “means able to be contacted by a procurement organization in a timely manner without undue effort, and willing and able to act in a manner consistent with existing medical protocols necessary for the making of an anatomical gift.” Fla.Stat.§765.511(20). Obviously, this is important when a procurement organization must contact a person for action with respect to making, amending, or revoking an anatomical gift.
The amended statute also addresses the priority now established for purposes of an anatomical gift if a priority is not designated in the instrument:
“If multiple purposes are set forth in the document of a gift but are not set forth in any priority order, the anatomical gift shall be used first for transplantation or therapy, if suitable. If the gift cannot be used for transplantation or therapy, the gift may be used for research or education.” Fla.Stat.§765.13(2)
Section 765.516 of the statute adds a couple of methods for a donor to amend or revoke the terms of an anatomical gift:
Donor amendment of the terms of or the revocation of anatomical the gift.—
(1) A donor may amend the terms of or revoke an anatomical gift by:
(a) The execution and delivery to the donee of a signed statement witnessed by at least two adults, at least one of whom is a disinterested witness.
(b) An oral statement that is made in the presence of two persons, one of whom is must not be a family member, and communicated to the donor’s family or attorney or to the donee. An oral statement is effective only if the procurement organization, transplant hospital, or physician, or technician has actual notice of the oral amendment or revocation before an incision is made to the decedent’s body or an invasive procedure to prepare the recipient has begun.
Other changes important for probate practitioners to observe to the statute include a provision, similar to the Uniform Anatomical Gift Act, which provides a safeguard from civil liability or administrative discipline for persons making or using as an anatomical gift, the donor’s estate, or persons acting on representations related to an individual’s relationship to the donor.