In the event of the death of a loved one, often one of the most sobering and difficult decisions you can make concerns the question of the deceased’s remains. Did they wish to be cremated, or buried- and if so, where? To whom, if anyone, should their organs be donated? Legally, who is in charge of these decisions anyway?

The last question of who really makes the decisions in these situations has recently received an important update that could have significant implications for you and your family. S.B. 180  was signed into law by Governor Wolf on October 23, 2018, becoming  Act 90 of 2018.

The act makes a number of changes to the disposition of the decedent’s remains and makes extensive changes to Chapter 86 on anatomical gifts. A complete description of all the changes is beyond the scope of this item, but the following changes are noteworthy:

  • 20 Pa.C.S. § 305(d) to provide that, if more than two persons with equal standing as next of kin disagree on the disposition of the decedent’s remains, the decision is made by the majority. If there is no majority, the court shall make the final determination. This change takes effect in 60 days.
  • Many of the references to organ donation in the P.E.F. Code (20 Pa.C.S.) have been broadened to include not only specific organs but also donations of hands, facial tissue, limbs, or other “vascularized composite allografts.”
  • The explanations that accompany the sample forms of health care, power of attorney, and living wills (20 Pa.C.S. § 5471) have been changed by adding new information about organ and tissue donations, and directions for organ and tissue donations have been included in the sample form. Other sections have been changed to limit the power of a health care agent to make anatomical gifts unless expressly authorized.
  • A number of changes have been made to the definitions in  20 Pa.C.S. Ch. 86 (“Anatomical Gifts”)  and new definitions have been added.
  • A new Subchapter D devoted to donations of tissue and “vascularized composite allografts” (see above) has been added to Chapter 86, with special rules for those kinds of donations.
  • Subchapter C of Chapter 86 (“Corneal Transplants”) has been deleted, probably because those kinds of donations are now considered part of Subchapter D on tissue donations.
  • Both the persons entitled to make anatomical gifts (§ 8611(b)), and the persons entitled to receive them (§ 8612(a)) have been revised.
  • The manner and procedures for making anatomical gifts (§ 8613) have been revised to facilitate designations on driver’s licenses and registries, and various other sections revised on procedures and possible liabilities relating to anatomical gifts.

Many of the amendments to Chapter 86 take effect immediately. The remainder take effect when the Department of Transportation has published notice of the establishment of websites and a registry to carry out relevant provisions of the act.

For guidance on planning your loved one’s future, don’t hesitate to reach out to our team today. Call Slutsky Elder Law at (610) 940-0650.

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