As medical science continues to make progress toward permitting people to live healthier and longer lives, many individuals are now deciding to take charge of their own medical and other health care decisions in consultation with physicians, family members, clergy, and close friends. Federal and state laws require and encourage health care facilities to discuss such matters as advance health care directives, do not resuscitate (DNR) orders, organ donations, and even autopsies with their patients when they are admitted to a health care facility. It is a good idea to think about all of these matters, preferably before you face hospitalization.
MEDICAL TREATMENT AND INFORMED CONSENT
In Hawai`i and all other states, competent individuals have the fundamental right to control the decisions relating to their own medical care. This includes decisions on whether to have life-sustaining medical or surgical means or procedures to prolong their lives provided, continued, withheld, or withdrawn. The basis for making decisions centers on the concept of informed consent. In Hawai`i, the State of Hawai`i Board of Medical Examiners establishes standards for health care providers to follow in giving information to a patient or to a patient’s guardian if the patient is not competent to give an informed consent. The standards include provisions designed to reasonably inform a patient, or a patient’s guardian or legal surrogate of the following:
- The condition being treated;
- The description of the proposed treatment or surgical procedure;
- The intended and anticipated results;
- The recognized possible alternative forms of treatment;
- The recognized alternative treatments or procedures, including the option of not providing these treatments or procedures;
- The recognized material risk of serious complications or mortality associated with the proposed treatment, recognized alterative treatments, and not undergoing treatment; and
- The recognized benefits of the recognized alternative treatments or procedures.
Patient Self Determination Act
All states and most health care facilities must comply with Medicare and Medicaid rules regarding patients’ right to control their health care treatment under a federal law commonly referred to as the “Patient Self-Determination Act” (PSDA). It requires all Medicare and Medicaid organizations, specifically hospitals, nursing facilities, home health agencies, hospices and prepaid health care organizations to do five things:
- Provide written information to patients at the time of admission or initial provision of services about the patients’ rights under state law to make decisions about what medical care they want or do not want, including their right to accept or refuse life-sustaining or life-prolonging medical treatment;
- Maintain written policies and procedures regarding advance directives, and provide written information to patients about what those policies are;
- Document in the patients’ medical records whether they have executed advance directives;
- Ensure compliance with state law at each health care organization which is subject to the new federal law;
- Provide (individually or with others) for the education of the staff and community on issues concerning advance directives.
Health Care Decisions
More and more people have decided to face the question of how health care decisions will be made when they are no longer able to make these decisions for themselves. No matter what an individual desires, it is important to communicate those desires so that health care providers will know what to do when that person can no longer make health care decisions. In determining how he or she wishes to be treated, an individual may want to discuss these matters with family, friends, clergy and other advisors. Individuals should make sure that these personal desires are made known, especially to health care providers.
Health care encompasses much more than medical treatment and decisions about end-of-life issues. Under a law which is called the Uniform Health Care Decisions Act (Modified) and which became effective in Hawai`i in 1999, health care means any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect an individual’s physical or mental condition, including:
- Selection and discharge of health care providers and institutions;
- Approval or disapproval of diagnostic tests, surgical procedures, programs of medication and orders not to resuscitate; and
- Direction to provide, withhold, or withdraw artificial nutrition and hydration, provided that withholding or withdrawing artificial nutrition or hydration is in accord with generally accepted health care standards applicable to health care providers or institutions.
Health Information and HIPAA
For the most part, and with a few exceptions, patient records belong to the patient and such information is considered confidential. Generally, only the patient or legally authorized individual can release private health care information. A federal law, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), sets privacy standards for medical records and, among many other things, requires that “covered entities” such as health plans, health care providers (e.g., hospitals and nursing facilities), or health care clearinghouses verify a person’s identity to ensure that it is the patient or a delegated or authorized “personal representative” who is requesting the patient’s medical records. If you feel that a doctor or hospital or other health care provider or institution has released medical information without permission you can file a complaint with the U.S. Department of Human Services Office of Civil Rights. You can call toll free (866) 627-7748 for more information and for a complaint form.
Due to the complexity and confusion of the HIPAA statute, an individual who needs access to medical records on behalf of an incapacitated patient may have a difficult time gaining access to those records unless they can produce evidence of their authority to receive medical information, including reviewing the medical file, on behalf of the patient.
State or other law determines who is authorized to act as a personal representative for purposes of HIPAA. In Hawai`i, this would usually include an individual who 1) has been delegated such authority by the patient in writing, or 2) has been appointed by the court to act as guardian, or 3) has been appointed by the patient as an agent in a power of attorney for health care or 4) is a “designated surrogate,” selected by consensus of “interested persons” or 5) is a non-designated surrogate acting on behalf of the patient. For deceased patients, the personal representative or executor of the patient’s estate may qualify. More detailed information about the roles and authority of these individuals, as well as sample language regarding the release of health care information, is included later in this chapter.
Advance Health Care Directives
The term “Advance Health care Directive,” (sometimes shortened to “Advance Directive”), applies to all directives, instructions, or even desires that a person may communicate in writing, orally or in some other fashion concerning decisions about medical treatment and health issues relating to his or her body and life. The term “Living Will” was popular for many years but was confusing to many. The previously mentioned Uniform Health Care Decisions Act (Modified) or UHCDA does not use the term “living will” but several states still use the term. In Hawai`i, the term “individual instruction” has taken its place. This and other information about the UHCDA will be discussed in greater detail later in this chapter.
Although advance directives are generally used in the context of making end-of-life decisions, the laws of the state of Hawai`i cover a broad range of advance directives and make it easy for individuals to have their instructions followed. Accordingly, directions such as declining cardiopulmonary resuscitation in advance or donating organs may be considered in a broad sense to be advance directives. Another example is a recently enacted law which specifically addresses making decisions in advance with respect to mental health conditions. Most commonly, advance directives are thought of as those written documents which provide health care providers with information about a patient’s desires concerning medical treatment and which contain a designation of an agent to make health care decisions for the patient. Although written advance directives concerning life sustaining medical treatment are encouraged and preferred under Hawai`i law, they are not required. An adult or emancipated minor may give an individual instruction regarding health care. The instruction may be oral or written. The instruction may be limited to take effect only if a specified condition arises.
Advance Health Care Directive formats generally follow the optional form found in Hawai`i under the UHCDA and should be adequate for use in most other states. However, some health care facilities may still be reluctant to recognize out-of-state documents. While there continues to be a strong movement toward creating uniformity among the states, it is still best to take preventive measures and check out the laws in another state ahead of time. For example, a person who is traveling to another state may be concerned about the “portability” of his or her advance directive. Some of this homework can be accomplished by calling a family member or friend living in that area to find out from a health care provider or elder law attorney about advance directive guidelines there. This information can also be obtained over the Internet at various websites.
Do Not Resuscitate (DNR) Codes
DNRs are orders not to provide cardio-pulmonary resuscitation (CPR) attempts to a person who has stopped breathing or whose heart has stopped beating. There are two basic types of DNRs, “in-hospital” and “out-of-hospital” DNRs. Out-of-hospital DNRs, often referred to as “Comfort Care Only (CCO-DNR)” or “Rapid Identification Documents,” will be discussed a bit later in this chapter.
In-hospital DNRs are placed by a physician with the patient’s (or patient’s legally authorized decision-maker’s) consent in the patient’s treatment chart. The normal action when a patient suffers cardiac or respiratory arrest in a hospital or other health care facility is called a “code.” It is important to know that, in such an emergency, the patient may routinely be resuscitated unless there is a written “DNR” (do not resuscitate) order in the medical record. This order is sometimes called a “Do Not Attempt to Resuscitate” or “No Cardiopulmonary Resuscitation (CPR)” order. The DNR order is only an order to forego the otherwise automatic initiation of CPR and it does not alter other treatment decisions. CPR can include such emergency medical interventions as artificial breathing, chest compressions, cardiac defibrillation (using electric shocks), and certain drugs.
A patient can designate an agent under a health care power of attorney to make such decisions. The decision to refuse CPR may also be made orally by a mentally competent patient to the treating physician. This can also serve as the basis for the DNR order, which is usually signed by your attending physician or supervising health care provider. DNR orders (or “no codes”) are placed in the patient’s medical chart and, thereafter, emergency procedures to resuscitate the patient will not be carried out. DNR codes are often written if it is felt that future resuscitation efforts would be futile.
In some hospitals there are other codes used, such as “Do-Not-Intubate” or DNI which direct health care providers not to insert tubes used to provide hydration and nutrition. Usually this type of code is utilized when a patient is in a condition addressed in the patient’s individual instructions or otherwise based upon a decision of an authorized decision-maker. Issues such as how individual instructions are made and who is an authorized decision-maker are subjects discussed in the following sections.
Individual Instructions in an Advance Health Care Directive under the Uniform Health Care Decisions Act
A good way to make your desires known concerning health care decisions, including life-sustaining medical treatment is to make an “individual instruction” in accordance with Hawai`i’s Uniform Health Care Decisions Act (Modified) or UHCDA. As previously mentioned, the individual instruction takes the place of what was commonly called the “living will” under old law. Individual instructions may be made orally or in writing and can cover virtually all aspects of health care. If made orally, it may be best for you to provide the instruction directly to your attending physician and ask him or her to “chart” your discussions by placing the information you provide in your medical file. You can provide an individual instruction in writing, for example by writing a letter to your physician,which includes information you want him or her to know about your desires with respect to health care decisions in the future.
An individual instruction can be incorporated into an advance directive document, which may include the designation of an agent through a health care power of attorney, directions concerning organ donations and the designation of a health care provider among other matters. The UHCDA provides an optional sample form with an accompanying explanation. Sample forms (long and short) are found at the end of this chapter. In the long form, choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of treatment to keep you alive, including the provision of artificial nutrition and hydration, as well as the provision of pain relief medication. Space is provided for you to add to the choices you have made or for you to write out any additional wishes. This form may be modified to suit your needs, or you may use a completely different form. A sample short form is also included at the end of this chapter.
HEALTH CARE POWER OF ATTORNEY
In addition to the “individual instruction” for health care, you should consider making a health care power of attorney (also called a durable power of attorney for health care or medical power of attorney). This can be done in the advance health care directive under the UHCDA. The durable power of attorney for health care is a specific type of durable power of attorney. It is different than other types of durable powers of attorney discussed in Chapter 3. Sample health care powers of attorney are included in the advance directive sample forms at the end of this chapter. A sample durable general power of attorney is included at the end of Chapter 3. To add a little more complexity to the subject, health care powers can also be included in a general power of attorney. If you are confused about the type of power of attorney you have, make sure to ask an attorney for advice and guidance.
Delegating the authority to an “agent” or “attorney-in-fact” in a health care power of attorney to carry out your individual instructions for health care or to make health care decisions in the absence of such instructions, is becoming a common method of planning for the future.
You have various options when creating a health care power of attorney. You can choose to have the health care power of attorney take effect when you become incapable of making your own decisions or have it take effect immediately even though you are still capable. You may also name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. This is a very important consideration since you cannot always be sure if your primary agent will be available to make decisions when you need him or her.
Unless related to you, your health care agent may not be an owner, operator, or employee of a health care institution where you are receiving care. Unless the form you sign limits the authority of your agent, your agent may make all health care decisions for you. Practically speaking, a physician normally will not want to act or, perhaps will not be able to act as your agent, unless you are related to the physician or if the physician is a close friend and is not your treating physician.
Powers of attorney for health care must be witnessed or notarized. For the power of attorney to be valid for making health care decisions, you must sign it:
- Before two “qualified” adult witnesses who are personally known to you and who are present when you sign. These witnesses must also sign the document.
- OR before a notary public in the state that acknowledges your signature.
- A witness for a power of attorney for health care cannot be:
- A health care provider,
- An employee of a health care provider or facility, or
- The agent.
At least one of the individuals used as a witness for a power of attorney for health care must be someone who is neither related to the principal by blood, marriage, or adoption; nor entitled to any portion of the estate of the principal upon the principal’s death under any will or codicil the principal may have made prior to the execution of the power of attorney for health care or by operation of law then existing.
What To Do With Your Advance Health care Directive
As previously indicated, your advance directive can include individual instructions and a power of attorney for health care, or it can include just a power of attorney for health care or it can just provide individual instructions for health care, depending on what you want it to do. When you complete an advance directive, give a copy of any signed and completed forms to your physician, to any other health care providers you may have, to any health care institution at which you are receiving care and to any health care agents you have named. You should talk to the person you have named as agent to make sure that he or she understands your wishes and is willing to take on the responsibility. Once again, make sure that you consider designating alternate attorneys-in-fact in case your first choice is unwilling or unable to act on your behalf.
Make certain that a copy of your executed document is placed in your medical file or files. This is your responsibility. In case of an emergency that requires a decision concerning your health care, make sure that you keep a copy where it is immediately available to your agent.
You can ask to have “AHCD” (short for Advanced Health care Directive) placed on your driver’s license or state identification card so the fact that you have made an advance directive will be known in an emergency. This will encourage people to look for the advance directive if, for some reason, you have not had it placed in your medical file.
Health Care Powers for Unmarried Couples or Partners
The power of attorney for health care is highly recommended for unmarried couples or partners who wish to give each other power to make medical treatment decisions for each other. A power of attorney for health care naming one’s partner may provide the authority necessary to make health care decisions and gain access to information about the partner’s care and condition and even, perhaps, the right to visit. Even if a partner is a reciprocal beneficiary, it is strongly recommended that consideration be given to executing a health care power of attorney.
As explained in the section called SURROGATE DECISION-MAKING, under Hawai’i law, reciprocal beneficiaries do not have any specific authority to make health care decisions for each other without being legally authorized through a guardianship, as a health care agent or as designated by a patient. As a matter of fact, under Hawai’i law, neither do spouses, adult children or parents of adults.
Revocation of Advance Health Care Directive
The UHCDA makes it clear that you may revoke an advance directive, including a health care power of attorney. However, you may revoke the designation of an agent only by a signed writing or by personally informing the supervising health care provider. You may revoke all or part of an advance health care directive, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke. A decree of annulment, divorce, dissolution of marriage, or legal separation revokes a previous designation of a spouse as agent unless otherwise specified in the decree or in a power of attorney for health care.
Comfort Care Only - DNR Directives
Advance directives are not generally used to make emergency resuscitation decisions although they may be used as the basis to withhold cardio-pulmonary resuscitation (CPR) attempts in cases where a person has been determined to be in a condition as stated in their advance directive. Traditionally, DNR codes only applied in situations if you are a patient in a health care facility.
Under a 2006 law which amended an existing “Rapid Identification Documents” statute, the Department of Health is to adopt rules for emergency medical services which include uniform methods of rapidly identifying an adult person who has certified, or for whom has been certified, in a written “comfort care only” document that the person or, consistent with Hawai`i’s Uniform Health Care Decisions Act (UHCDA), the person’s guardian, agent, or surrogate directs emergency medical services personnel, first responder personnel, and health care providers not to administer chest compressions, rescue breathing, electric shocks, or medication, or all of these, to restart the heart if the person’s breathing or heart stops, and directs that the person is to receive care for comfort only, including oxygen, airway suctioning, splinting of fractures, pain medicine, and other measures required for comfort.
The written document containing the certification shall be signed by the patient or, consistent with (UHCDA), the person’s guardian, agent, or surrogate and by any two other adult persons who personally know the patient. Further, the original document containing the certification and all three signatures shall be maintained by the patient, the patient’s Physician, Attorney, Guardian, Surrogate, or any other person who may lawfully act on the patient’s behalf. Two copies of the document shall be given to the patient, or the patient’s guardian, agent, or surrogate.
The rules also shall provide for the following:
- The patient, or the patient’s guardian, agent, or surrogate, may verbally revoke the “comfort care only” document at any time, including during the emergency situation.
- An anonymous tracking system shall be developed to assess the success or failure of the procedures and to ensure that abuse is not occurring; and
- If an emergency medical services person, first responder, or any other health care provider believes in good faith that the provider’s safety, the safety of the family or immediate bystanders, or the provider’s own conscience requires the patient be resuscitated despite the presence of a “comfort care only” document, then that provider may attempt to resuscitate that patient, and neither the provider, the ambulance service, nor any other person or entity shall be liable for attempting to resuscitate the patient against the patient’s will.
POLST--PROVIDER ORDERS FOR LIFE SUSTAINING TREATMENT
In 2009, the Hawai‘i Legislature passed a new law providing for a health care protocol called Physician Orders for Life-Sustaining Treatment (POLST). This law was modified in 2014 to authorize advance practice registered nurses (APRN) to execute such a form with a patient or the patient’s legally authorized representative or LAR (guardian, health care agent or surrogate) if the patient lacks capacity. The Provider Orders for Life-Sustaining Treatment form contains information and directions about an individual’s end of life decisions such as cardiopulmonary resuscitation (CPR) and tube feeding which emergency medical personnel and other health care professionals are required to follow. By law the POLST form is not an advance directive but a physician or APRN's order and, accordingly, is immediately actionable.
Even though it is not an advance directive, the POLST form can serve as a summary of an individual’s preferences, decisions and information about life-sustaining treatment. The form turns the information and expressed desires into a provider’s order that is signed by the physician or APRN and the individual or his or her LAR if the patient lacks capacity. The individual or his or her LAR is encouraged to discuss health care treatment decisions with the physician or APRN and document these decisions on a brightly colored POLST form which is then signed by both the individual and his or her health care agent or surrogate and the provider. The form is lime green in color, so it can easily be found when needed and because it copies clearly on white paper. A plain white copy, completed correctly, and signed by a patient or LAR and by the provider is equally legal and valid. The POLST form can be downloaded from the www.kokuamau.org web site.
Who will make health care decisions for an individual who is no longer capable of making decisions, has not made an advance health care directive and does not have a guardian? Historically, health care providers have turned to family members to provide informed consent in these situations. Since 1999, Hawai`i’s UHCDA (Modified) has provided a mechanism for surrogates to make decisions for incapacitated individuals. A surrogate is a person who is not a guardian or health care agent but has the authority to make decisions for the patient.
Under the UHCDA surrogate provisions, a patient may designate or disqualify any individual to act as a surrogate by personally informing the supervising health care provider. In the absence of such a designation, or if the designee is not reasonably available, a surrogate may be appointed to make a health care decision for the patient. A surrogate may make a health care decision for a patient who is an adult or emancipated minor if the patient has been determined by the primary physician to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available. The process of appointing a surrogate is somewhat complicated under Hawai i’s modified version of the UHCDA.
Upon a determination that a patient lacks decisional capacity to provide informed consent (or refusal) for medical treatment, the primary physician or the physician’s designee first needs to make “reasonable efforts to notify the patient of the patient’s lack of capacity.” The primary physician, or the physician’s designee, then must make reasonable efforts to locate as many “interested persons” as practicable. The primary physician may rely on such individuals to notify other family members or interested persons. Under this new law “interested persons” means the patient’s spouse, unless legally separated or estranged, a reciprocal beneficiary, any adult child, either parent of the patient, an adult sibling or adult grandchild of the patient, or any adult who has exhibited special care and concern for the patient and who is familiar with the patient’s personal values.
Upon locating the interested persons, the primary physician, or the physician’s designee, must inform such persons of the patient’s lack of decisional capacity and that a surrogate decision-maker should be selected for the patient. The interested persons are to make reasonable efforts to reach a consensus as to who among them shall make health care decisions on behalf of the patient. The person selected to act as the patient’s surrogate should be the person who has a close relationship with the patient and who is the most likely to be currently informed of the patient’s wishes regarding health care decisions.
If any of the interested persons disagrees with the selection or the decision of the surrogate, or, if after reasonable efforts the interested persons are unable to reach a consensus as to who should act as the surrogate decision-maker, then any of the interested persons may seek guardianship of the patient by initiating guardianship proceedings. Only interested persons involved in the discussions to choose a surrogate may initiate such proceedings for the patient.
A surrogate who has been designated by the patient may “make health care decisions for the patient that the patient could make on the patient’s own behalf.” In other words, a “designated surrogate” may make all decisions for the patient. A surrogate who has not been designated by the patient “may make all health care decisions for the patient that the patient could make on the patient’s own behalf, except that artificial nutrition and hydration may be withheld or withdrawn for a patient upon a decision of the surrogate only when the primary physician and a second independent physician certify in the patient’s medical records that the provision or continuation of artificial nutrition or hydration is merely prolonging the act of dying and the patient is highly unlikely to have any neurological response in the future.”
This particular provision is subject to interpretation and reinforces the notion that an individual should appoint an agent through a health care power of attorney or designate a surrogate if the person wishes to grant another person the power to make health care decisions for the patient that the patient could make on the patient’s own behalf. In other words, a “non-designated surrogate” has certain restrictions on making health care decisions about tube feeding.
The surrogate who has not been designated by the patient shall make health care decisions for the patient based on the wishes of the patient, or, if the wishes of the patient are unknown or unclear, on the patient’s best interest. The decision of a surrogate who has not been designated by the patient regarding whether life-sustaining procedures should be provided, withheld, or withdrawn shall not be based, in whole or in part, on either a patient’s preexisting, long-term mental or physical disability, or a patient’s economic status. A surrogate who has not been designated by the patient must inform the patient, to the extent possible, of the proposed procedure and the fact that someone else is authorized to make a decision regarding that procedure.
Whether the surrogate is a “designated” or “non-designated” surrogate, a health care decision made by a surrogate for a patient is effective without judicial approval. Further, the supervising health care provider will require a surrogate to provide a written declaration under the penalty of false swearing, stating facts and circumstances reasonably sufficient to establish the claimed authority.
The legislature’s enactment of unique requirements and restrictions governing the surrogate provisions of this “uniform” law in Hawai`i makes it even more crucial for an individual to consider designating an agent in a health care power of attorney or, at a minimum, designating a surrogate by informing the supervising health care provider.
Brain Death, Comas, Persistent Vegetative and Minimally Conscious States
When is a person considered to be dead? Modern science has the ability to keep a body functioning even in the absence of evidence of brain activity. Under Hawai`i law, a person is considered dead if, in the “announced” opinion of a physician or registered nurse, based on ordinary standards of current medical practice, the person has “experienced irreversible cessation of spontaneous respiratory and circulatory functions.” Death will have occurred at the time when the irreversible cessation of the functions first coincided. In the event that artificial means of support preclude such a determination, a person is considered dead when the person has experienced “irreversible cessation of all functions of the entire brain, including the brain stem.” This requires the opinions of an attending and a consulting physician.
Upon a diagnosis of possible brain death, laboratory confirmation may be made by tests showing that there is no cerebral blood flow and that there is no significant electrical activity shown by an “EEG,” which is an instrument used to detect electrical activity in the brain. By itself, absence of any detection of electrical activity in the brain is not sufficient to determine brain death since there may be certain chemical or physical reasons for such an absence, including the presence of certain drugs.
Sometimes a family may be told that a loved one is “brain dead” when, in fact the patient is actually alive but has suffered brain injury or disease which affects his or her consciousness. Sometimes it is hard for a doctor to diagnose the precise condition of the patient or when or if the patient will get better. If a person appears to be “asleep” all of the time and does not respond to outside stimuli, such as noise or pain, that person may be diagnosed as being in a coma. The coma may be temporary or may be permanent.
Occasionally a person may appear to be in a coma but is actually in a “locked-in syndrome” which causes paralysis of all four extremities without loss of consciousness. Often the patient is able to move his or her eyes and blink and communication can be established.
If a patient is unable to respond to his or her external environment but still has sleep and wake cycles and spontaneous eye opening and movement, that person may be diagnosed to be in a persistent vegetative state. This condition usually means that the person no longer has the ability to understand or make decisions or communicate by any means or even recognize anybody. If a person is truly in a persistent vegetative state that means that the brain has suffered significant damage which cannot be reversed. If a person has some capability to recognize people or to communicate but only minimally, that person may be diagnosed as being in a “minimally conscious state.”
It may be a good idea to get a second opinion when a person is diagnosed as being brain dead or in a coma or persistent vegetative state, especially if the family is being asked to remove medical support. There are enough cases of misdiagnosis or mistake in the prognosis of a patient’s condition where the patient “woke up,” or got better.
OTHER ISSUES AT THE END OF LIFE
Donation of Organs and Bodies
A new Uniform Anatomical Gift Act was passed by the Legislature and enacted into law in 2008. It makes it much easier to donate a body or a body part for transplantation, therapy, research or education. It permits any individual eighteen years of age, prior to the death of the donor, to give all or any part of his or her body for medical or dental education, research, advancement of medical science or dental science, therapy or transplantation. The agent under a health care power of attorney or a guardian may also make an anatomical gift. The gift becomes effective upon death without waiting for probate. Evidence of an intent to donate organs can be made by a will or by some other document such as a donor card, or a driver’s license imprinted with the word, “organ donor.” During a terminal illness or injury to the donor, he or she may make an anatomical gift by any form of communication addressed to at least two individuals who are at least eighteen years of age, one of whom is a disinterested witness.
The new law also has provisions for revoking a donation and for refusing to make such a gift.
Upon death, a number of people in an order of priority established under the new law, can make an anatomical gift on behalf of the decedent for purpose of transplantation, therapy, research, or education. The priority classes of individuals include agents under a health care power of attorney, spouses (or reciprocal beneficiary), adult children, parents, adult grandchildren, grandparents, adults who have exhibited special care or concern for the decedent, guardian, and others who may have the authority to dispose of the decedent’s body. The new law provides detailed instructions if there are objections to the donation.
The John A. Burns School of Medicine at the University of Hawai`i has a program through which it accepts bodies for scientific purposes. However, it does reserve the right to refuse bodies, for example, when it does not need any more or when the body is not in an appropriate condition for the school’s purposes or if the body is not located on O`ahu.
Contact the Organ Donor Center for more information about organ donation and the School of Medicine about donation of bodies.