For many years now, I have been asking estate planning clients if they would like to be organ donors. The intent of the question is to find out if they would like to be general organ donors, donating whatever organs can be used for transplant at the time of their death. When clients answer this question affirmatively, we will give them some instructions for getting in contact with the organ donor registry if they haven’t already marked their driver’s licenses as being organ donors.
However, a short time ago, we had a client ask us a question we had never been asked before: “Can I make a specific bequest of an organ in my Will?”
It wasn’t a question that I could answer right away. Because of the sensitive nature of organ donations, and the public interest in not wanting to foster a business in organ harvesting, I guessed that if it was permitted, there would likely be a whole host of rules to be followed as part of the process, and I was right.
However, as it turns out, the answer is “Maybe, under certain circumstances.”
The Washington Revised Uniform Anatomical Gift Act, RCW 68.64 sets forth the procedures for making anatomical gifts, including specific bequests of organs. The statute does permit a donor to make a specific bequest of a specific organ to a specific person, provided that the rules set forth for doing so are followed, but if the named recipient is unable to make use of the organ, it will pass to the next appropriate organ or tissue bank, or organ procurement organization.
Because there are a number of formalities to be observed and steps to be taken in order to correctly make a specific bequest of an organ, and additional steps to be taken if the donor’s driver’s license or state issued identification card already denotes the donor as an organ donor, I cannot recommend enough meeting with an attorney to help make sure that the gift the donor wishes to make will be directed to the appointed person. This is especially important as the statute exempts parties and organizations from liability for action taken in good faith attempts to comply with the statute. This means if a donor registry is unaware of a specific bequest made in a donor’s Will, and it gives the donated organ to a person other than the named beneficiary, it is unlikely that it can be held liable, absent gross negligence or some other factor that would counter a good faith claim.
Now that I know the answer to this question, I’m looking forward to another client asking about this option in estate planning.