Legal Issues Legal issues regarding death include definition of death, certification of death, organ donation, and disposition of the body and property. The vignette at the beginning of the chapter describes a man who lost both his wife and daughter in different incidents, but found the courage to donate their organs and make organ donation a cause to commemorate their deaths. Their donations improved the lives of 11 different people. How gratifying it must have felt to make such a difference in other’s lives in midst of one’s own tragedy and loss. Laws regarding death are different in each state, and they shift in response to the population’s concerns. Laws codify the values of a people. Advance Directives for Health Care- these are instructions made regarding what a person would want done for him or herself if s/he was incapacitated and unable to express oneself. This is designed to make life easier and clearer for survivors who may have to make such decisions. In 1991, the Patient Self-Determination Act requires that people admitted to a health care facility be informed of their rights to accept or refuse treatment and to execute an advance directive. Some directives involve organ donation, disposition of the body, and even distribution of the estate. Living Wills- these are a means to express one’s wishes to care providers and family about interventions that they may or may not want to permit in the face of terminal illness. As specific as these may be, they can’t always anticipate every consideration, however. They allow some personal autonomy in death-related matters by thinking ahead and forming decisions about one’s death so as to communicate them to others. The general thought is that they wish for the dying process not to be unreasonably prolonged when there is no hope of cure. They usually request that pain be managed, but heroic care in the face of death be abandoned. These documents are quite specific, even to specify that anyone who respects this document and withdraws cure-oriented care cannot be prosecuted for suicide or the person’s insurance will not construe this act as suicide. Durable Powers of Attorney in Health Care Matters- this is a legal doctrine whereby one person authorizes another to make decision or take actions on behalf of the first person for a specified period of time or in some circumstance. “Durable” means it is in force until revoked and if it specifies for health care decisions, then that is all the person will be concerned with. So this allows some flexibility for the person holding the power of attorney- to allow some interventions or refuse all, as is deemed most helpful. Five Wishes- combines many elements of living wills and durable powers of attorney for health care matters. It is easy to understand, simple to use, personal and thorough. It specifies what person should make decisions for me if I can’t, the kind of treatment I want or don’t want, how comfortable I want to be, how I want people to treat me, and what I want my loved ones to know. It is a valid legal document in 38 states.
Definition of death- these are various ways society has defined the condition of death, as opposed to apparent death, which used to be a problem when people would be in vegetative states. When a person dies, there is no longer a human being present, just corpse. A corpse doesn’t have the same rights as a living person. So the general definition is “An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead.” This was codified in the Uniform Determination of Death Act in 1994. Determination of death- this has to do with deciding whether death has actually occurred, establishing conditions under which it took place, evaluating the manner of the death, and confirming whether further investigation is required. The book compares the coroner’s or medical examiner’s job in this case to that of a sports referee. They don’t make the rules, they just assess the condition according to the rules. Determining death is important for things such as organ recovery. In some cases of brain death, there is a time when family wishes to get to visit the person or there is some delay in recovering organs, so the body is kept on life support in order to keep the tissues viable. There may be an irreversible coma which must be determined to lead inevitably to death, or the person has some hope of recovery, so the person should be kept on life support. The criteria for irreversible coma include: 1) unreceptivity and unresponsivity 2) no movements or breathing 3) no reflexes 4) flat electroencephalogram There are 2 conditions which must be excluded: 1) hypothermia, when the temperature of the body has fallen below 90 degrees; and 2) presence of CNS depressants, such as barbiturates which may mask the body’s ability to function. Since we now have such sophisticated means of life support, these determinations are essential to allow the living to go on with their lives. Certification of Death: death certificates, coroners, and medical examiners In most cases people die under care of a physician or in a nursing home or hospice, so the doctor certifies the death with time and cause recorded on the death certificate. These documents are required for claiming life insurance and other death benefits, disposing of property and investigating possible crime. Death certificates describe personal information regarding the deceased and location of death, causes and conditions of death, information about the certifier, and information about disposition of the body, and signature of a funeral director. Manner of death falls into 4 categories: natural, accidental, suicide, or homicideNASH. Some deaths are also categorized as “undetermined” or “pending investigation.” The coroner or medical examiner determines these things if the person dies suddenly and is not under the care of a physician. Coroners decide if the body should be autopsied, and whether there should be an inquest to determine cause of death. “Coroner” goes back to corona- the representative of the crown in Britain, who determines what taxes and
property go back to the king when a person dies. Coroners are usually elected to office and they do not have to have any special training. Medical examiners are appointed and are required to be medical doctors, usually pathologists. Organ, tissues, and body donation are not exclusively from deceased donors, as living people can donate blood, some tissue and some organs. Successful donation requires tissue typing, as well as use of immunosuppressant medication (cyclosporine) to reduce rejection of the transplanted organ. At this point, the following organs can be transplanted: kidneys, hearts, liver, pancreas, intestines, lungs, and joint transplants of kidney/ pancreas and heart/lung. Tissue that can be transplanted include skin for grafts, heart valves, veins for bypass surgery, eye and ocular components, bone, and connective tissue. Some of these tissues can be sterilized and frozen for future use. 95% of deaths could involve some tissue donation, but only 5% do. Each donor could be life-enhancing for up to 70 people. Heart valves can also be transplanted from pigs (xenotransplantation) and skin donations can come from living donors after some bariatric surgeries. Entire bodies can be donated to medical centers for training interns and for research. This needs to be set up before death, because the body needs to be prepared in a certain way and transported immediately after death. The National Organ Transplant Act of 1984 defined how to facilitate gifts of scarce organs in a fair way, and the Organ Procurement and Transplantation Network was set up to match donors and recipients. Most people are presently waiting for kidneys and livers: 58% are males, 42% females, most people are 50 – 64 years of age, and most are Caucasians and African Americans. 18 candidates for transplants die each year for lack of organs. The need for transplant organs has risen considerably- over 500% over the past 19 years. Numbers of transplants have increased 130%. So the obstacle to transplantation is simply lack of organs. Living donors-Donation is possible when the organ is not unique (a living person can donate a kidney) or when the person has died. The person must be an adult to make a living gift, of sound mind, and s/he can designate to whom the gift is to be made. There must be a screening process to make sure the person knows what they are doing, are consenting freely, are a good tissue match, are able to withstand the donation process and can manage to cope after the donation. In 2006, living donors made up 45.6% of donors. The advantages of living donors are that medical history of the donor can be taken, the organ will be out of the body only a short time, and there are even strategies for donation to a specified person even if the donor is not a match- sort of a round robin donation including other people who are also donating to a specific person. There is also a promise made to living donors that if they need a donation themselves later, that they would be on the top of the donor list. Nonliving donors- they can donate multiple organs and tissues if the cause of death would not preclude donation. Organs must be recovered shortly after the death of a healthy donor. There are 2 types of nonliving or deceased donors: those who suffered brain death and those who have suffered cardiac death. They may be on life support in order to enable the doctors to diagnose death and allow a transplant team to be on hand for recovery. When brain death has been diagnosed, then there is donation after brain death. Life support may be continued just long enough to harvest organs. The second donors are people in persistent vegetative states who have not yet experienced brain death. There may be minimal respiration, in which case, life support may be stopped in
order to tell if the person can sustain himself on his own. Designated powers of attorney will then be asked to make decisions about removing life support permanently. Then death takes its own course- this is cardiac death and there can be donation after cardiac death. Most transplants (77%) come from nonliving donors because so many organs and tissues can be taken from a deceased person. Donor Rights legislation establishes first person consent- which is a legally binding decision that does not require additional witnesses or family consent to authorize organ donation. If the person has not made a request regarding donation of organs, a request is made of next of kin or health care surrogate, donor’s spouse, adult child, either parent, adult sibling, legal guardian. Notification of family then occurs so they can make known any issues they have or they know regarding the donor. The way the transplant team presents this is “giving the opportunity for donation,” instead of requesting a donation. This gives family the authority to make such a donation. Also terming it harvesting organs is more insensitive than saying they are “recovering” organs. As difficult as this request may be to make, it is even more sad if the person wished to donate and no one asked or made arrangements for such a donation. No one should be coerced to donate organs, but many people say this is such a benevolent end of a life that holds a great gift for other people (The Best Part of the Worst Day of My Life, pp. 475.) Better education of the public has begun to dispel some myths regarding donation: donor families incur no costs to donate, organs and tissues can not be sold in this country, donation will not affect funeral arrangements (unless the entire body is donated, of course) and most religions have no problems with organ donations. Donor cards can be obtained from the Division of Transplantation or you can have it noted on your driver’s license. It is most important to inform people who will be involved with your care if you die, since documents may not be read in time for donation. There is a “Bill of Rights for Donor Families” (pp. 480) that outlines how the donor family will be treated, booklets on subjects such as brain death, or the death of a child or spouse, the National Donor Family Quilt (Patches of Love) which is a way to commemorate loved ones who donated organs, as well as national education and awareness promoted regarding organ donation. Some people put an inscription on the headstone that describes the deceased’s donations. The Transplant Games have demonstrated the successes of organ transplants in that the recipients are able to fully participate in life following their transplants. National Communications Guidelines have tried to enable communication between all who are involved in donation and transplantation, so recipients can express their thanks to donors, while keeping all people safe. Disposition of Body and Property Disposition of Body- these laws enable disposition of bodies to be safe for handlers as well as for the environment and to establish legal processes for burial and disinterment. Embalming is required when bodies are to be transported via common carriers. It may also be required when disposition of a body does not occur promptly or refrigeration is not available. Commonly however, embalming is used so the family can have time to get together and view the body during a service. Disposition of Property- distributing property of the deceased is governed by the laws of the state where a person lived at the time of death. Disposition of real estate is governed
by the state where the real estate is. Probate is the process of administering these functions. An executor (if named by the decedent, administrator if named by the court) is the person designated to carry out post-death duties regarding wishes and property. This person must make an inventory of property, collecting the assets of the estate, notifying parties who have claims against the estate, paying debts, expenses, and taxes, completing business affairs, arranging for preparation of necessary documents, distributing property to those who are designated in the will, and closing the estate. The executor may take a commission for his/her time. Wills and Intestacy- if a person dies without a will, she is said to be intestate- without a testament to one’s wishes. Laws then govern how the estate is to be divided, based on common practice. Preferred heirs would be spouse and children, descendants over parents. Without any heirs, the estate passes to the state. So estate planning, including a will gives the person control over how property shall be divided. Wills must be drawn up by adults of sound mind, not under any undue influence, witnessed by some number of individuals with no interest in the estate. Wills cannot abrogate laws in such a way as to disinherit close family members entirely. Holographic wills, hand written and unwitnessed, are acceptable as a legal document in many states. They may be unreliable if they don’t include some required language or the meaning is ambiguous. Formal wills usually requires some legal assistance in order to ensure that the document will be clear and legally binding. Wills can be changed at any time, if the testator is still of sound mind. This would be done in a supplementary document called a codicil. This leaves the former will intact except for changing some part of it. Any new will revokes the previous document. Ethical wills are moral statements that do not have legal force, but by which people seek to transfer and state their moral values for others’ benefits. Trusts are means of avoiding the expense or delay of probate court by transferring assets during one’s life. There can be a clear gift of property conveyed to another – as high as $11,000 per year per donee without any tax liability. (This does not mean that this money cannot be attached by Medicare or Medicaid if the person requires nursing care that is paid by the state, however.) Real estate can be transferred by deed. Transfers effective at death convey ownership to another person upon the death of the current owner. Joint tenancy with right of survivorship is an arrangement for transfer of property at death through co-ownership. Both hold equal rights to the property during life, but ownership reverts to the survivor upon one’s death. This property does not pass through probate, as it is always owned by someone. Life insurance policies allows for transfer of assets at one’s death. Ownership of the policy can be transferred to the recipient, so the insured may no longer pay for the policy, but also may not rescind the policy. Beneficiaries can be changed during the insured’s life. Benefits are not included as taxable assets in the estate. A trust is an efficient way to preserve assets from probate. There is a third party, a trustee, who will manage the trust and the beneficiary will receive income from the protected property, which cannot be sold. Living trusts are set up for the benefit of the trustor – in case s/eh is incapacitated and unable to act on his/her own behalf. Estate taxes are paid from the decedent’s estate- taxes on transfer of property to beneficiaries before property is distributed to heirs.
Inheritance taxes are imposed on people who receive property from inheritance. Charitable donations are exempt as well as property up to $2 million in value for an individual. This was scheduled to rise to $3.5 million in 2009. 97 – 98% of estates are exempt from estate taxes. Unlimited amount of property can be transferred to spouses without estate tax.