Changes in Organ Donation as Part of Ohio Estate Planning Law
Ohio has historically supported and encouraged “anatomical gifts,” or donation of a person’s whole body or useable organs and tissues upon that person’s passing. It may therefore be surprising to learn that Ohio House Bill 7, also known as the Probate Omnibus Bill, removes the ability to make any anatomical gift in a person’s last will and testament or living will declaration. However, there is a logical explanation for this change in the law.
Time is of the essence when donating bodily organs or tissue, but it can often be difficult for a person’s loved ones to locate the documents in which the anatomical gift is indicated in the short time before donation is no longer possible. If these documents cannot be found, someone wanting to make an organ or tissue donation might not have his or her wishes carried out. By amending the law to removing the ability to make anatomical gifts by will or living will, the General Assembly hopes that estate planning attorneys will instead direct prospective donors to the state donor registry maintained by the Bureau of Motor Vehicles (BMV). Donor organizations and tissue banks can access this database at the time of the donor’s death, meaning that healthcare providers can be notified of a person’s intent to donate in a more timely manner.
The revised statutes do not explicitly state whether anatomical gift provisions in estate planning documents executed before the amendment are still legally valid, and the General Assembly likely would have included such a provision if this was their intent. Regardless, Ohioans wanting to be organ and tissue donors should not rely upon their estate planning documents for this purpose, but instead should register with the Bureau of Motor Vehicles when applying for a new or renewed photo ID, or otherwise contact the BMV for information about other ways to register. Once a person has indicated to the BMV that he or she would like to be an organ donor, the authorization will remain in effect until withdrawn by donor.
This amendment to the Ohio Revised Code does not prevent someone from making an anatomical gift during a terminal illness or injury by communicating their intentions to be an organ donor in any manner, either verbally or in writing, to a minimum of two adults, at least one of whom is a disinterested witness (i.e. someone who would not directly benefit from the anatomical gift). It also does not prevent a terminally ill or injured person’s legal agent, health care power of attorney, parent, or guardian from making a gift on the person’s behalf, provided the person has not already communicated a desire not to be an organ donor.
Due to this significant change in the statute related to making anatomical gifts, we anticipate that changes will be made to the current State of Ohio Living Will Declaration and Healthcare Power of Attorney forms available from the Ohio State Bar Association.
H.B. 7, 134th G.A. (2021) takes effect on August 17, 2021. For more information about anatomical gifts or other estate planning issues, please reach out to our experienced attorneys in the Estate Planning Trust & Probate Group at Isaac Wiles.