When most people think of an advance health care directive, they think in terms of its “living will” component. In other words, the instructions that the directive contains with respect to medical treatments and healthcare. For instance, preferences with respect to life support and pain management.
But an advance directive also serves a very important purpose. It allows the principal to provide instructions and authority for the time immediately after the principal’s death.
In this respect, the advance directive can offer more than a living will. A person can provide instructions on what happens immediately after their death, and also provide authority to the person tasked with carrying these instructions out.
The advance directive can address funeral arrangements, autopsies, organ donation, and other urgent matters that arise upon a person’s death, and which many surviving family members may find overwhelming in their time of grief.
In this way, the person can help to simplify things for their loved ones by making their preferences known beforehand, and leave specific instructions to reduce potential conflict, confusion, even financial hardship for their loved ones.
Directing the Disposition of Remains
Most of the time, a lot of the confusion and stress that arises upon the death of a family member is the simple overwhelm of everything that would need to be done. That includes how the remains are to be handled and all the rituals and ceremonies, if any, that goes along with it.
Strangely, even in this respect family members may disagree. After all, decisions must be made among several competing choices: cremation versus burial, funeral arrangements, memorial services, religious ceremonies, and the location of where the person is to be interned.
In an advance directive, a person can make decisions about:
- How their remains are to be handled, whether cremated or buried
- If cremated, how their ashes are to be handled
- Where the wake should be held
- Where they will be buried
- Whether there should be a public or private memorial service
- Whether a religious ceremony should be held
- Preferences in terms of music or other preferred ceremonies
- Who would be giving a eulogy
- Any other family or cultural traditions
By leaving instructions on all of these, a person can rest assured that the memory they will leave behind is one they prefer to be remembered by, and that the celebration of their life would be among their loved ones.
More importantly, by making these decisions themselves, a person can allow their loved ones the space to grieve their passing without being overwhelmed by having to make these kinds of decisions during an already emotionally difficult and stressful time.
Anatomical Gifts
Under the California Uniform Anatomical Gift Act Law, a person can opt to donate their organs and tissues, or even their entire body, for research, therapy, education, or transplantation.
For most people, their preference is that which is already indicated in their driver’s licenses or in any donor database registry. But since people only renew their licenses after several years, any changes in their preference would not be as up-to-date.
Others may sign some form of writing during a period of terminal illness, but this is not always possible or feasible. A person who meets with an accident, for instance, and dies before reaching the hospital, may not have the opportunity to communicate their preference to anyone before their death.
Another option is by will. Under Section 7150.20 of the Uniform Anatomical Gift Act Law, a person may actually indicate their desire to make an anatomical gift by will. Since this type of procedure to carry out the donation must be carried out immediately after death, the gift actually takes effect upon the donor’s death, whether or not the will is probated. If the will is later on invalidated, however, the gift is not invalidated.
Another, and a far more effective method, of expressing one’s preferences with respect to making anatomical gifts, is through an advance directive. An advance directive can provide clearer instructions and far more details than are reflected in one’s driver’s license. For instance:
- The person’s blood type
- Any relevant medical condition that may or may not affect the donation
- Whether the donation is only limited to specific organs or tissues
- Whether the person has any preference regarding what their donation will be used for – whether research, transplantation, or education, or if there are any specific health care of research institution that the person prefers to make the donation to
It is important to remember that a person retains the right to revoke their advance directive at any time, and the presumption is that they have the capacity to do so. This means that a person also retains the right to change their decisions with respect to making anatomical gifts.
Keeping one’s advance directive up to date is therefore important, and avoids potential confusion or conflict later on, if there is lack of clarity in what the person prefers.
Authorizing Post-Death Procedures
Yes, an advance directive may also be used to authorize, among other post-death procedures, autopsies.
If a person did not die due to natural causes, or died as the result of an accident, injury, or other unusual circumstances, the authorities may want a coroner or medical examiner to investigate the cause of death and conduct an autopsy. Or perhaps family members simply want to better understand the cause of their loved one’s death.
There are times when people would prefer that their bodies not be autopsied. If, on the other hand, a person has no strict religious or spiritual objection to such a procedure, providing pre-written authorization for the conduct of an autopsy can simplify things later on – both for the official conducting the autopsy, and the family members who may otherwise disagree about whether or not an autopsy should be performed.
In this way, there would be no need for extraordinary delay immediately after a person’s death to make these types of post-mortem decisions.
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If you would like assistance preparing or updating your advance directive as part of a comprehensive estate plan, contact us to schedule a consultation. Proper planning today can provide meaningful guidance and peace of mind for your loved ones tomorrow.