Donation of Brain Tissue in Alzheimer's Study

In any basic estate planning, an attorney is going to suggest that you prepare and execute an Advanced Health Care Directive. Included in that directive is a Power of Attorney for Health Care designing someone that you trust to make medical decisions for you, when you are unable to. Also, part of the standard Advanced Health Care Directive is an optional section regarding your wishes about donating your organs and tissue.



So what happens if you are somewhat leary about donating organs and you check the box that says, I don't want any of my organs or tissues to be donated; and then several years down the road you are diagnosed and suffer from debilitating disease that is hereditary? Assume that by the time of the diagnosis, you no longer have the capacity to change your mind about the donation of your organs and tissue. Your participation in medical studies regarding the disease may help your family.



If your agent violates your wishes, and under your power of attorney for health care signs you up for such a medical study, the medical facility is required to follow the direction of the person holding the power of attorney--your named agent, unless otherwise ordered by the court. Any interested person can bring a petition with the court to determine whether the acts by an agent are consistent with the patient's desires as expressed in the advance health care directive and this action could be reversed by court order which would remove the agent.



If a previous agent has exercised his or her power to go against the express direction of the advanced health care directive (but there was no countermanding court order), the successor agent has no liability for the action of the previous agent.



The question that our firm faced was whether the successor agent had an affirmative duty to withdraw the patient from the medical study that would require the donation of brain tissue.



None of the family members objected to the patient's participation in the study. In fact, the patient's children believed that since the issue was to study the heritary aspects of the disease, the patient would have wanted to participate. However, since the family members were disputing other estate issues, the successor agent did not want to expose himself to any risk of litigation and asked our firm for a legal opinion on the issue.



Since no interested party objected to the patient's participation in the study, the successor agent was advised that he had no affirmative duty to withdraw the patient from the study, but that he would be exceeding his authority under the power of attorney if he was asked to sign anything authorizing the donation of brain tissue. Since the previous agent (exceeding his authority) had signed all of the documentation regarding authorizing the donation, it was not expected that any further authorization would be required.



Powers of attorneys are very useful tools, but should be fully explained so that clients can make fully informed decisions.



Kathryn Van Houten is a partner with Irsfeld, Irsfeld & Younger, LLP Attorneys in Glendale, California with a general law practice including estate planning, trusts and probate law.