act-1994-0-102•Pennsylvania Act 1994-102 — PROBATE, ESTATES AND FIDUCIARIES CODE (20 PA.C.S.) - AMEND
Pennsylvania Act 1994-102 — PROBATE, ESTATES AND FIDUCIARIES CODE (20 PA.C.S.) - AMEND
act-1994-0-1021994 Pa. Act 102Law
Act text
PROBATE, ESTATES AND FIDUCIARIES CODE (20 PA.C.S.) - AMEND
Act of Dec. 1, 1994, P.L. 655, No. 102 Cl. 20
Session of 1994
No. 1994-102
SB 1662
AN ACT
Amending Title 20 (Decedents, Estates and Fiduciaries) of the
Pennsylvania Consolidated Statutes, further providing for the
jurisdiction of the orphans' court regarding powers of
attorney and for the situs of an inter vivos trust;
permitting a decedent by will to expressly exclude or limit
the right of an individual or class to succeed to property
passing by intestate succession; further providing for a will
signed by mark; confirming the abolition of the doctrine of
worthier title; providing for penalty clauses for contest in
wills and trusts; increasing certain monetary limits;
clarifying that the court may dispense with the appointment
of a guardian for a minor under certain circumstances;
providing for the right of recovery of Federal estate tax;
clarifying that the cy pres doctrine applies to testamentary
and inter vivos trusts; further providing for the effect of
divorce on designation of beneficiaries; confirming the right
to disclaim for a joint tenant with right of survivorship;
making the rules of abatement for decedents' estates
applicable to inter vivos and testamentary trusts; further
providing for the form and implementation of a power of
attorney and for declarations governing life-sustaining
treatment; and providing for anatomical gifts.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Sections 712(4), 724(b)(2), 2101, 2502
introductory paragraph and (2) and 2517 of Title 20 of the
Pennsylvania Consolidated Statutes are amended to read:
§ 712. Nonmandatory exercise of jurisdiction through orphans'
court division.
The jurisdiction of the court of common pleas over the
following may be exercised through either its orphans' court
division or other appropriate division:
* * *
(4) Powers of attorney.--All matters pertaining to the
exercise of powers by attorneys in fact or agents acting
under powers of attorney as provided in Chapter 56 (relating
to powers of attorney) [when the principal is or may be
deceased, disabled or incapacitated].
§ 724. Situs of inter vivos trust.
* * *
(b) Not provided for in trust instrument.--If the trust
instrument does not expressly provide for the situs of the inter
vivos trust, its situs shall be:
* * *
(2) Nonresident settlor.--In the case of an inter vivos
trust whose settlor[:
(i)] is not domiciled in the Commonwealth at the
time when during his lifetime the first application is
made to a court concerning the trust[;] or
[(ii)] was not domiciled in the Commonwealth at his
death if the first application to a court concerning the
trust was made thereafter, in a county in which any
trustee resides or is located, and if there is no such
trustee, then in a county where property of the trust is
located.
§ 2101. Intestate estate.
(a) General rule.--All or any part of the estate of a
decedent not effectively disposed of by will or otherwise passes
to his heirs as prescribed in this chapter[.], except as
modified by the decedent's will.
(b) Modification by decedent's will.--A decedent by will may
expressly exclude or limit the right of an individual or class
to succeed to property of the decedent passing by intestate
succession. If that individual or a member of that class
survives the decedent, the share of the decedent's intestate
estate to which the individual or class would have succeeded
passes as if that individual or each member of that class had
disclaimed his intestate share.
§ 2502. Form and execution of a will.
Every will[,] shall be in writing and shall be signed by the
testator at the end thereof, subject to the following rules and
exceptions:
* * *
(2) Signature by mark.--If the testator is unable to
sign his name for any reason, a will to which he makes his
mark and to which his name is subscribed [in his presence]
before or after he makes his mark[,] shall be as valid as
though he had signed his name thereto: Provided, That he
makes his mark in the presence of two witnesses who sign
their names to the will in his presence.
* * *
§ 2517. Rule in Shelley's case and doctrine of worthier title.
(a) Rule in Shelley's case.--The rule in Shelley's case and
its corollaries shall not be applied, and a devise or bequest
directly or in trust which shall express an intent to create an
estate for life with remainder to the life tenant's heirs or the
heirs of his body or his issue or his next of kin or persons
described by words of similar import[,] shall not operate to
give such life tenant an estate in fee in real estate or an
absolute estate in personalty.
(b) Doctrine of worthier title.--The doctrine of worthier
title shall not be applied as a rule of law or as a rule of
construction. Language in a governing instrument describing the
beneficiaries of a disposition as the transferor's heirs, heirs
at law, next of kin, distributees, relatives or family or
language of similar import shall not create or presumptively
create a reversionary interest in the transferor.
Section 2. Title 20 is amended by adding a section to read:
§ 2521. Penalty clause for contest.
A provision in a will or trust purporting to penalize an
interested person for contesting the will or trust or
instituting other proceedings relating to the estate or trust is
unenforceable if probable cause exists for instituting
proceedings.
Section 3. Sections 3101(a), 3102, 3121, 3504, 3531, 3701,
5101 and 5404(b) of Title 20 are amended to read:
§ 3101. Payments to family and funeral directors.
(a) Wages, salary or employee benefits.--Any employer of a
person dying domiciled in this Commonwealth at any time after
the death of the employee, whether or not a personal
representative has been appointed, may pay wages, salary or any
employee benefits due the deceased in an amount not exceeding
[$3,500] $5,000 to the spouse, any child, the father or mother,
or any sister or brother (preference being given in the order
named) of the deceased employee. Any employer making such a
payment shall be released to the same extent as if payment had
been made to a duly appointed personal representative of the
decedent and he shall not be required to see to the application
thereof. Any person to whom payment is made shall be answerable
therefor to anyone prejudiced by an improper distribution.
* * *
§ 3102. Settlement of small estates on petition.
When any person dies domiciled in the Commonwealth owning
property (exclusive of real estate and of property payable under
section 3101 (relating to payments to family and funeral
directors), but including personal property claimed as the
family exemption) of a gross value not exceeding [$10,000]
$25,000, the orphans' court division of the county wherein the
decedent was domiciled at the time of his death, upon petition
of any party in interest, in its discretion, with or without
appraisement, and with such notice as the court shall direct,
and whether or not letters have been issued or a will probated,
may direct distribution of the property (including property not
paid under section 3101) to the parties entitled thereto. The
authority of the court to award distribution of personal
property under this section shall not be restricted because of
the decedent's ownership of real estate, regardless of its
value. The decree of distribution so made shall constitute
sufficient authority to all transfer agents, registrars and
others dealing with the property of the estate to recognize the
persons named therein as entitled to receive the property to be
distributed without administration, and shall in all respects
have the same effect as a decree of distribution after an
accounting by a personal representative. Within one year after
such a decree of distribution has been made, any party in
interest may file a petition to revoke it because an improper
distribution has been ordered. If the court shall find that an
improper distribution has been ordered, it shall revoke the
decree and shall direct restitution as equity and justice shall
require.
§ 3121. When allowable.
The spouse of any decedent dying domiciled in the
Commonwealth, and if there be no spouse, or if he has forfeited
his rights, then such children as are members of the same
household as the decedent, and in the event there are no such
children, then the parent or parents of the decedent who are
members of the same household as the decedent, may retain or
claim as an exemption either real or personal property, or both,
not theretofore sold by the personal representative, to the
value of [$2,000] $3,500: Provided, That property specifically
devised or bequeathed by the decedent, or otherwise specifically
disposed of by him, may not be so retained or claimed if other
assets are available for the exemption. The surviving husband or
wife shall be a competent witness as to all matters pertinent to
the issue of forfeiture of the right to exemption.
§ 3504. Representation of parties in interest.
Persons interested in the estate as beneficiary, heir, or
next of kin, if minors or otherwise legally incapacitated, and
possible unborn or unascertained persons, when not already
represented by a fiduciary, may be represented in an accounting
by a guardian or trustee ad litem, if the court deems it
necessary. The court may dispense with the appointment of a
guardian or trustee ad litem for a person who is a minor or
otherwise legally incapacitated, unborn, or unascertained, when
there is a living person sui juris having a similar interest or
when such person is or would be issue of a living ancestor sui
juris and interested in the estate whose interest is not adverse
to his. If the whereabouts of any beneficiary or next of kin is
unknown, or if there is doubt as to his existence the court
shall make such provision for service of notice and
representation in the accounting as it deems proper.
§ 3531. Estates not exceeding [$10,000] $25,000.
When the gross real and personal estate of a decedent does
not exceed the value of [$10,000] $25,000, the personal
representative, after the expiration of one year from the date
of the first complete advertisement of the grant of letters, may
present his petition to the court with an annexed account
showing the administration of the estate, the distribution
theretofore made and suggesting the proper distribution of the
estate not theretofore distributed. Thereupon, the court, upon
satisfactory proof of notice to all known parties in interest,
may approve the distribution theretofore made and order
distribution of the assets not theretofore distributed and
discharge the personal representative and his sureties from
future liability without the expense of proceedings as in a
formal account. The court may discharge only the surety from
future liability, and may allow the personal representative to
continue without surety upon condition that no further assets
shall come into the possession of the personal representative
until he files another bond, with sufficient surety, as required
by the register.
§ 3701. Power of decedent.
A testator, settlor, donor or possessor of any appropriate
power of appointment may direct how the Federal estate tax or
the Federal generation-skipping tax due because of his death,
including interest and penalties, shall be apportioned or may
grant a discretionary power to another so to direct, but any
direction regarding apportionment of the Federal generation-
skipping tax must expressly refer to that tax. Any direction
waiving the right of recovery of Federal estate tax, provided
for under section 2207A of the Internal Revenue Code of 1986
(Public Law 99-514, 26 U.S.C. § 2207A), on the property
includable in the taxable estate by reason of section 2044 of
the Internal Revenue Code of 1986, must expressly refer to that
right. Any such direction shall take precedence over the
provisions of this chapter insofar as the direction provides for
the payment of the tax or any part thereof from property the
disposition of which can be controlled by the instrument
containing the direction or delegating the power to another.
§ 5101. When guardian unnecessary.
When the entire real and personal estate, wherever located of
a resident or nonresident minor has a net value of [$10,000]
$25,000 or less, all or any part of it may be received and held
or disposed of by the minor, or by the parent or other person
maintaining the minor, without the appointment of a guardian or
the entry of security, in any of the following circumstances:
(1) Award from decedent's estate or trust.--When the
court having jurisdiction of a decedent's estate or of a
trust in awarding the interest of the minor shall so direct.
(2) Interest in real estate.--When the court having
jurisdiction to direct the sale or mortgage of real estate in
which the minor has an interest shall so direct as to the
minor's interest in the real estate.
(3) Other circumstances.--In all other circumstances,
when the court which would have had jurisdiction to appoint a
guardian of the estate of the minor shall so direct.
§ 5404. Declaration.
* * *
(b) Form.--A declaration may but need not be in the
following form and may include other specific directions,
including, but not limited to, designation of another person to
make the treatment decision for the declarant if the declarant
is incompetent and is determined to be in a terminal condition
or to be permanently unconscious.
DECLARATION
I, , being of sound mind, willfully and
voluntarily make this declaration to be followed if I become
incompetent. This declaration reflects my firm and settled
commitment to refuse life-sustaining treatment under the
circumstances indicated below.
I direct my attending physician to withhold or withdraw
life-sustaining treatment that serves only to prolong the
process of my dying, if I should be in a terminal condition
or in a state of permanent unconsciousness.
I direct that treatment be limited to measures to keep me
comfortable and to relieve pain, including any pain that
might occur by withholding or withdrawing life-sustaining
treatment.
In addition, if I am in the condition described above, I
feel especially strong about the following forms of
treatment:
I ( ) do ( ) do not want cardiac resuscitation.
I ( ) do ( ) do not want mechanical respiration.
I ( ) do ( ) do not want tube feeding or any other
artificial or invasive form of nutrition (food) or hydration
(water).
I ( ) do ( ) do not want blood or blood products.
I ( ) do ( ) do not want any form of surgery or invasive
diagnostic tests.
I ( ) do ( ) do not want kidney dialysis.
I ( ) do ( ) do not want antibiotics.
I realize that if I do not specifically indicate my
preference regarding any of the forms of treatment listed
above, I may receive that form of treatment.
Other instructions:
I ( ) do ( ) do not want to designate another person as
my surrogate to make medical treatment decisions for me if I
should be incompetent and in a terminal condition or in a
state of permanent unconsciousness. Name and address of
surrogate (if applicable):
Name and address of substitute surrogate (if surrogate
designated above is unable to serve):
I ( ) do ( ) do not want to make an anatomical gift of
all or part of my body, subject to the following limitations,
if any:
I made this declaration on the day of (month,
year).
Declarant's signature:
Declarant's address:
The declarant or the person on behalf of and at the
direction of the declarant knowingly and voluntarily signed
this writing by signature or mark in my presence.
Witness's signature:
Witness's address:
Witness's signature:
Witness's address:
* * *
Section 4. Section 5602(a) of Title 20 is amended by adding
a paragraph to read:
§ 5602. Form of power of attorney.
(a) Specification of powers.--A principal may, by inclusion
of the language quoted in any of the following paragraphs or by
inclusion of other language showing a similar intent on the part
of the principal, empower his attorney-in-fact to do any or all
of the following, each of which is defined in section 5603
(relating to implementation of power of attorney):
* * *
(23) "To make an anatomical gift of all or part of my
body."
* * *
Section 5. Section 5603 of Title 20 is amended by adding a
subsection to read:
§ 5603. Implementation of power of attorney.
* * *
(u.1) Power to make anatomical gift.--A power "to make an
anatomical gift of all or part of my body" shall mean that the
attorney-in-fact may arrange and consent to procedures to make
an anatomical gift in accordance with Chapter 86 (relating to
anatomical gifts).
* * *
Section 6. Sections 6110 heading and (a), 6111.2, 6117, 6201
and 7183 of Title 20 are amended to read:
§ 6110. Administration of charitable [estates] interests.
(a) General rule.--Except as otherwise provided by the
conveyor, if the charitable purpose for which an interest shall
be conveyed outright or in a testamentary or inter vivos trust
shall be or become indefinite or impossible or impractical of
fulfillment, or if it shall not have been carried out for want
of a trustee or because of the failure of a trustee to designate
such purpose, the court may, on application of the trustee or of
any interested person or of the Attorney General, after proof of
notice to the Attorney General when he is not the petitioner,
order an administration or distribution of the [estate] interest
for a charitable purpose in a manner as nearly as possible to
fulfill the intention of the conveyor, whether his charitable
intent be general or specific.
* * *
§ 6111.2. Effect of divorce on designation of beneficiaries.
If a person domiciled in this Commonwealth at the time of his
death is divorced from the bonds of matrimony after designating
his spouse as beneficiary of a life insurance policy, annuity
contract, pension or profit-sharing plan or other contractual
arrangement providing for payments to his spouse, any
designation in favor of his former spouse which was revocable by
him after the divorce shall become ineffective for all purposes
and shall be construed as if such former spouse had predeceased
him unless it appears from the wording of the designation [or
from either], a court order or a written contract between the
person and [his] such former spouse that the designation was
intended to survive the divorce. Unless restrained by court
order, no insurance company, pension or profit-sharing plan
trustee or other obligor shall be liable for making payments to
a former spouse which would have been proper in the absence of
this section. Any former spouse to whom payment is made shall be
answerable to anyone prejudiced by the payment.
§ 6117. Rule in Shelley's case and doctrine of worthier title.
(a) Rule in Shelley's case.--The rule in Shelley's case and
its corollaries shall not be applied, and a conveyance directly
or in trust which shall express an intent to create an estate
for life with remainder to the life tenant's heirs or the heirs
of his body or his issue or his next of kin or persons described
by words of similar import, shall not operate to give such life
tenant an estate in fee in real estate or an absolute estate in
personalty.
(b) Doctrine of worthier title.--The doctrine of worthier
title shall not be applied as a rule of law or as a rule of
construction. Language in a governing instrument describing the
beneficiaries of a disposition as the transferor's heirs, heirs
at law, next of kin, distributees, relatives or family or
language of similar import shall not create or presumptively
create a reversionary interest in the transferor.
§ 6201. Right to disclaim.
A person to whom an interest in property would have devolved
by whatever means, including a beneficiary under a will, an
appointee under the exercise of a power of appointment, a person
entitled to take by intestacy, a joint tenant with right of
survivorship, a donee of an inter vivos transfer, a donee under
a third-party beneficiary contract (including beneficiaries of
life insurance and annuity policies and pension, profit-sharing
and other employee benefit plans), and a person entitled to a
disclaimed interest, may disclaim it in whole or in part by a
written disclaimer which shall:
(1) describe the interest disclaimed;
(2) declare the disclaimer and extent thereof; and
(3) be signed by the disclaimant.
The right to disclaim shall exist notwithstanding any limitation
on the interest in the nature of a spendthrift provision or
similar restriction.
§ 7183. Notice, audits, reviews, and distribution.
The provisions concerning accounts, audits, reviews,
distributions and rights of distributees in trust estates shall
be the same as those set forth in the following provisions of
this title for the administration of a decedent's estate:
Section 3503 (relating to notice to parties in interest).
Section 3504 (relating to representation of parties in
interest).
Section 3511 (relating to audits in counties having
separate orphans' court division).
Section 3512 (relating to audits in counties having no
separate orphans' court division).
Section 3513 (relating to statement of proposed
distribution).
Section 3514 (relating to confirmation of account and
approval of proposed distribution).
Section 3521 (relating to rehearing; relief granted).
Section 3532(c) (relating to at risk of personal
representative).
Section 3533 (relating to award upon final confirmation
of account).
Section 3534 (relating to distribution in kind).
Section 3536 (relating to recording and registering
decrees awarding real estate).
Section 3538 (relating to distributions involving persons
born out of wedlock).
Section 3539 (relating to change in law after pattern of
distribution established).
Section 3540 (relating to absentee and additional
distributees).
Section 3541 (relating to order of abatement).
Section 3544 (relating to liability of personal
representative for interest).
Section 3545 (relating to transcripts of balances due by
personal representative).
Section 7. Chapter 86 of Title 20 is repealed.
Section 8. Title 20 is amended by adding a chapter to read:
CHAPTER 86
ANATOMICAL GIFTS
Subchapter
A. General Provisions
B. Express Anatomical Gifts
C. Corneal Transplants
SUBCHAPTER A
GENERAL PROVISIONS
Sec.
8601. Definitions.
§ 8601. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Acute care general hospital." Any hospital which has an
emergency room facility.
"Advisory committee." The Organ Donation Advisory Committee
established under section 8622 (relating to Organ Donation
Awareness Trust Fund).
"Bank or storage facility." A facility licensed, accredited
or approved under the laws of any state for storage of human
bodies or parts thereof.
"Board." The Humanity Gifts Registry.
"Decedent." A deceased individual, including a stillborn
infant or fetus.
"Donor." An individual who makes a gift of all or part of
his body.
"Fund." The Organ Donation Awareness Trust Fund established
under section 8622 (relating to Organ Donation Awareness Trust
Fund).
"Hospital." An institution licensed in this Commonwealth
having an organized medical staff established for the purpose of
providing to inpatients, by or under the supervision of
physicians, diagnostic and therapeutic services for the care of
persons who are injured, disabled, pregnant, diseased, sick or
mentally ill or rehabilitation services for the rehabilitation
of persons who are injured, disabled, pregnant, diseased, sick
or mentally ill. The term includes facilities for the diagnosis
and treatment of disorders within the scope of specific medical
specialties. The term does not include facilities caring
exclusively for the mentally ill.
"Organ procurement organization." An organization that meets
the requirements of section 371 of the Public Health Service Act
(58 Stat. 682, 42 U.S.C. § 273).
"Part." Organs, tissues, eyes, bones, arteries, blood, other
fluids and any other portions of a human body.
"Person." An individual, corporation, government or
governmental subdivision or agency, business trust, estate,
trust, partnership, association or any other legal entity.
"Physician" or "surgeon." A physician or surgeon licensed or
authorized to practice under the laws of any state.
"State." Any state, district, commonwealth, territory,
insular possession and any other area subject to the legislative
authority of the United States of America.
"Unlawful competition." Conduct declared unlawful under
section 3 of the act of December 17, 1968 (P.L.1224, No.387),
known as the Unfair Trade Practices and Consumer Protection Law.
SUBCHAPTER B
EXPRESS ANATOMICAL GIFTS
Sec.
8611. Persons who may execute anatomical gift.
8612. Persons who may become donees; purposes for which
anatomical gifts may be made.
8613. Manner of executing anatomical gifts.
8614. Delivery of document of gift.
8615. Amendment or revocation of gift.
8616. Rights and duties at death.
8617. Requests for anatomical gifts.
8618. Voluntary contribution system.
8619. Use of driver's license or identification card to
indicate organ or tissue donation.
8620. Police and emergency personnel responsibilities.
8621. Organ Donation Awareness Trust Fund contributions.
8622. Organ Donation Awareness Trust Fund.
8623. Confidentiality requirement.
8624. Prohibited activities.
§ 8611. Persons who may execute anatomical gift.
(a) General rule.--Any individual of sound mind and 18 years
of age or more may give all or any part of his body for any
purpose specified in section 8612 (relating to persons who may
become donees; purposes for which anatomical gifts may be made),
the gift to take effect upon death. Any individual who is a
minor and 16 years or age or older may effectuate a gift for any
purpose specified in section 8612, provided parental or guardian
consent is deemed given. Parental or guardian consent shall be
noted on the minor's donor card, application for the donor's
learner's permit or driver's license or other document of gift.
A gift of the whole body shall be invalid unless made in writing
at least 15 days prior to the date of death.
(b) Others entitled to donate anatomy of decedent.--Any of
the following persons, in order of priority stated, when persons
in prior classes are not available at the time of death, and in
the absence of actual notice of contrary indications by the
decedent or actual notice of opposition by a member of the same
or a prior class, may give all or any part of the decedent's
body for any purpose specified in section 8612:
(1) The spouse.
(2) An adult son or daughter.
(3) Either parent.
(4) An adult brother or sister.
(5) A guardian of the person of the decedent at the time
of his death.
(6) Any other person authorized or under obligation to
dispose of the body.
(c) Donee not to accept in certain cases.--If the donee has
actual notice of contrary indications by the decedent or that a
gift by a member of a class is opposed by a member of the same
or a prior class, the donee shall not accept the gift. The
persons authorized by subsection (b) may make the gift after or
immediately before death.
(d) Examinations.--A gift of all or part of a body
authorizes any examination necessary to assure medical
acceptability of the gift for the purposes intended.
(e) Rights of donee paramount.--The rights of the donee
created by the gift are paramount to the rights of others except
as provided by section 8616(d) (relating to rights and duties at
death).
§ 8612. Persons who may become donees; purposes for which
anatomical gifts may be made.
The following persons may become donees of gifts of bodies or
parts thereof for any of the purposes stated:
(1) Any hospital, surgeon or physician for medical or
dental education, research, advancement of medical or dental
science, therapy or transplantation.
(2) Any accredited medical or dental school, college or
university for education, research, advancement of medical or
dental science or therapy.
(3) Any bank or storage facility for medical or dental
education, research, advancement of medical or dental
science, therapy or transplantation.
(4) Any specified individual for therapy or
transplantation needed by him.
(5) The board.
§ 8613. Manner of executing anatomical gifts.
(a) Gifts by will.--A gift of all or part of the body under
section 8611(a) (relating to persons who may execute anatomical
gift) may be made by will. The gift becomes effective upon the
death of the testator without waiting for probate. If the will
is not probated or if it is declared invalid for testamentary
purposes, the gift, to the extent that it has been acted upon in
good faith, is nevertheless valid and effective.
(b) Gifts by other documents.--A gift of all or part of the
body under section 8611(a) may also be made by document other
than a will. The gift becomes effective upon the death of the
donor. The document, which may be a card designed to be carried
on the person, must be signed by the donor in the presence of
two witnesses who must sign the document in his presence. If the
donor is mentally competent to signify his desire to sign the
document but is physically unable to do so, the document may be
signed for him by another at his direction and in his presence
in the presence of two witnesses who must sign the document in
his presence. Delivery of the document of gift during the
donor's lifetime is not necessary to make the gift valid.
(c) Specified and unspecified donees.--The gift may be made
to a specified donee or without specifying a donee. If the
latter, the gift may be accepted by the attending physician as
donee upon or following death. If the gift is made to a
specified donee who is not available at the time and place of
death, the attending physician upon or following death, in the
absence of any expressed indication that the donor desired
otherwise, may accept the gift as donee. The physician who
becomes a donee under this subsection shall not participate in
the procedures for removing or transplanting a part.
(d) Designation of person to carry out procedures.--
Notwithstanding section 8616(b) (relating to rights and duties
at death), the donor may designate in his will, card or other
document of gift the surgeon or physician to carry out the
appropriate procedures. In the absence of a designation or if
the designee is not available, the donee or other person
authorized to accept the gift may employ or authorize any
surgeon or physician for the purpose, or, in the case of a gift
of eyes, he may employ or authorize a person who is a funeral
director licensed by the State Board of Funeral Directors, an
eye bank technician or medical student, if the person has
successfully completed a course in eye enucleation approved by
the State Board of Medical Education and Licensure, or an eye
bank technician or medical student trained under a program in
the sterile technique for eye enucleation approved by the State
Board of Medical Education and Licensure to enucleate eyes for
an eye bank for the gift after certification of death by a
physician. A qualified funeral director, eye bank technician or
medical student acting in accordance with the terms of this
subsection shall not have any liability, civil or criminal, for
the eye enucleation.
(e) Consent not necessary.--If a donor card, donor driver's
license, living will, durable power of attorney or other
document of gift evidencing a gift of organs or tissue has been
executed, consent of any person designated in section 8611(b) at
the time of the donor's death or immediately thereafter is not
necessary to render the gift valid and effective.
(f) Documentation of gifts by others.--Any gift by a person
designated in section 8611(b) shall be made by a document signed
by him or made by his telegraphic, recorded telephonic or other
recorded message.
§ 8614. Delivery of document of gift.
If the gift is made by the donor to a specified donee, the
will, card or other document or an executed copy thereof may be
delivered to the donee to expedite the appropriate procedures
immediately after death. Delivery is not necessary to the
validity of the gift. The will, card or other document or an
executed copy thereof may be deposited in any hospital, bank or
storage facility that accepts it for safekeeping or for
facilitation of procedures after death. On request of any
interested party upon or after the donor's death, the person in
possession shall produce the document for examination.
§ 8615. Amendment or revocation of gift.
(a) Document delivered to donee.--If the will, card or other
document or executed copy thereof has been delivered to a
specified donee, the donor may amend or revoke the gift by any
of the following:
(1) The execution and delivery to the donee of a signed
statement.
(2) An oral statement made in the presence of two
persons and communicated to the donee.
(3) A statement during a terminal illness or injury
addressed to an attending physician and communicated to the
donee.
(4) A signed card or document found on his person or in
his effects.
(b) Document not delivered to donee.--Any document of gift
which has not been delivered to the donee may be revoked by the
donor in the manner set out in subsection (a) or by destruction,
cancellation or mutilation of the document and all executed
copies thereof.
(c) Gifts by will.--Any gift made by a will may also be
amended or revoked in the manner provided for amendment or
revocation of wills or as provided in subsection (a).
§ 8616. Rights and duties at death.
(a) Donees and relatives.--The donee may accept or reject
the gift. If the donee accepts a gift of the entire body, he
shall, subject to the terms of the gift, authorize embalming and
the use of the body in funeral services if the surviving spouse
or next of kin as determined in section 8611(b) (relating to
persons who may execute anatomical gift) requests embalming and
use of the body for funeral services. If the gift is of a part
of the body, the donee, upon the death of the donor and prior to
embalming, shall cause the part to be removed without
unnecessary mutilation. After removal of the part, custody of
the remainder of the body vests in the surviving spouse, next of
kin or other persons under obligation to dispose of the body.
(b) Physicians.--The time of death shall be determined by a
physician who tends the donor at his death or, if none, the
physician who certifies the death. The physician or person who
certifies death or any of his professional partners or
associates shall not participate in the procedures for removing
or transplanting a part.
(c) Certain liability limited.--A person who acts in good
faith in accordance with the terms of this subchapter or with
the anatomical gift laws of another state or a foreign country
is not liable for damages in any civil action or subject to
prosecution in any criminal proceeding for his act.
(d) Law on autopsies applicable.--The provisions of this
subchapter are subject to the laws of this Commonwealth
prescribing powers and duties with respect to autopsies.
§ 8617. Requests for anatomical gifts.
(a) Procedure.--On or before the occurrence of each death in
an acute care general hospital, the hospital shall make contact
with the regional organ procurement organization in order to
determine the suitability for organ, tissue and eye donation for
any purpose specified under this subchapter. This contact and
the disposition shall be noted on the patient's medical record.
(b) Limitation.--If the hospital administrator or his
designee has received actual notice of opposition from any of
the persons named in section 8611(b) (relating to persons who
may execute anatomical gift) and the decedent was not in
possession of a validly executed donor card, the gift of all or
any part of the decedent's body shall not be requested.
(c) Donor card.--Notwithstanding any provision of law to the
contrary, the intent of a decedent to participate in an organ
donor program as evidenced by the possession of a validly
executed donor card, donor driver's license, living will,
durable power of attorney or other document of gift shall not be
revoked by any member of any of the classes specified in section
8611(b).
(d) Identification of potential donors.--Each acute care
general hospital shall develop within one year of the date of
final enactment of this section, with the concurrence of the
hospital medical staff, a protocol for identifying potential
organ and tissue donors. It shall require that, at or near the
time of every individual death, all acute care general hospitals
contact by telephone their regional organ procurement
organization to determine suitability for organ, tissue and eye
donation of the individual in question. The person designated by
the acute care general hospital to contact the organ procurement
organization shall have the following information available
prior to making the contact:
(1) The patient's identifier number.
(2) The patient's age.
(3) The cause of death.
(4) Any past medical history available.
The organ procurement organization, in consultation with the
patient's attending physician or his designee, shall determine
the suitability for donation. If the organ procurement
organization in consultation with the patient's attending
physician or his designee determines that donation is not
appropriate based on established medical criteria, this shall be
noted by hospital personnel on the patient's record, and no
further action is necessary. If the organ procurement
organization in consultation with the patient's attending
physician or his designee determines that the patient is a
suitable candidate for anatomical donation, the acute care
general hospital shall initiate a request by informing the
persons and following the procedure designated under section
8611(b) of the option to donate organs, tissues or eyes. The
person initiating the request shall be an organ procurement
organization representative or a designated requestor. The organ
procurement organization representative or designated requestor
shall ask persons pursuant to section 8611(b) whether the
deceased was an organ donor. If the person designated under
section 8611(b) does not know, then this person shall be
informed of the option to donate organs and tissues. The
protocol shall encourage discretion and sensitivity to family
circumstances in all discussions regarding donations of tissue
or organs. The protocol shall take into account the deceased
individual's religious beliefs or nonsuitability for organ and
tissue donation.
(e) Tissue procurement.--
(1) The first priority use for all tissue shall be
transplantation.
(2) Upon Department of Health approval of guidelines
pursuant to subsection (f)(1)(ii), all acute care general
hospitals shall select at least one tissue procurement
provider. A hospital shall notify the regional organ
procurement organization of its choice of tissue procurement
providers. If a hospital chooses more than one tissue
procurement provider, it may specify a rotation of referrals
by the organ procurement organization to the designated
tissue procurement providers.
(3) Until the Department of Health has approved
guidelines pursuant to subsection (f)(1)(ii), tissue
referrals at each hospital shall be rotated in a proportion
equal to the average rate of donors recovered among the
tissue procurement providers at that hospital during the two-
year period ending August 31, 1994.
(4) The regional organ procurement organization, with
the assistance of tissue procurement providers, shall submit
an annual report to the General Assembly on the following:
(i) The number of tissue donors.
(ii) The number of tissue procurements for
transplantation.
(iii) The number of tissue procurements recovered
for research by each tissue procurement provider
operating in this Commonwealth.
(f) Guidelines.--
(1) The Department of Health, in consultation with organ
procurement organizations, tissue procurement providers and
the Hospital Association of Pennsylvania, donor recipients
and family appointed pursuant to section 8622(c)(3) (relating
to Organ Donation Awareness Trust Fund) shall, within six
months of the effective date of this chapter, do all of the
following:
(i) Establish guidelines regarding efficient
procedures facilitating the delivery of anatomical gift
donations from receiving hospitals to procurement
providers.
(ii) Develop guidelines to assist hospitals in the
selection and designation of tissue procurement
providers.
(2) Each organ procurement organization and each tissue
procurement provider operating within this Commonwealth
shall, within six months of the effective date of this
chapter, file with the Department of Health, for public
review, its operating protocols.
(g) Death record review.--
(1) The Department of Health shall make annual death
record reviews at acute care general hospitals to determine
their compliance with subsection (d).
(2) To conduct a review of an acute care general
hospital, the following apply:
(i) The Department of Health shall select to carry
out the review the Commonwealth-licensed organ
procurement organization designated by the Health Care
Financing Administration for the region within which the
acute care general hospital is located. For an organ
procurement organization to be selected under this
subparagraph, the organization must not operate nor have
an ownership interest in an entity which provides all of
the functions of a tissue procurement provider.
(ii) If there is no valid selection under
subparagraph (i) or if the organization selected under
subparagraph (i) is unwilling to carry out the review,
the department shall select to carry out the review any
other Commonwealth-licensed organ procurement
organization. For an organ procurement organization to be
selected under this subparagraph, the organization must
not operate nor have an ownership interest in an entity
which provides all of the functions of a tissue
procurement provider.
(iii) If there is no valid selection under
subparagraph (ii) or if the organization selected under
subparagraph (ii) is unwilling to carry out the review,
the department shall carry out the review using trained
department personnel.
(3) There shall be no cost assessed against a hospital
for a review under this subsection.
(4) If the department finds, on the basis of a review
under this subsection, that a hospital is not in compliance
with subsection (d), the department may impose an
administrative fine of up to $500 for each instance of
noncompliance. A fine under this paragraph is subject to 2
Pa.C.S. Ch. 5 Subch. A (relating to practice and procedure of
Commonwealth agencies) and Ch. 7 Subch. A (relating to
judicial review of Commonwealth agency action). Fines
collected under this paragraph shall be deposited into the
fund.
(h) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection:
"Designated requestor." A hospital employee completing a
course offered by an organ procurement organization on how to
approach potential donor families and request organ or tissue
donation.
"Noncompliance." Any failure on the part of a hospital to
contact an organ procurement organization as required under
subsection (d).
§ 8618. Voluntary contribution system.
(a) Voluntary designation.--The Department of Revenue shall
provide a space on the face of the State individual income tax
return form for the 1997 tax year and 2000 tax year whereby an
individual may voluntarily designate a contribution of any
amount desired to the fund established in section 8622 (relating
to Organ Donation Awareness Trust Fund).
(b) Deduction from refund.--The amount so designated by an
individual on the State individual income tax return form shall
be deducted from the tax refund to which the individual is
entitled and shall not constitute a charge against the income
tax revenues due the Commonwealth.
(c) Transfer of funds.--The Department of Revenue shall
annually determine the total amount designated pursuant to this
section and shall report that amount to the State Treasurer who
shall transfer that amount to the fund.
(d) Form instructions.--The Department of Revenue shall, in
all taxable years following the effective date of this chapter,
provide on its forms or in its instructions which accompany
State individual income tax return forms adequate information
concerning the Organ Donor Awareness Trust Fund which shall
include the listing of an address, furnished to it by the
advisory committee, to which contributions may be sent by those
taxpayers wishing to contribute to the fund but who do not
receive refunds.
(e) Applicability.--This section shall apply to taxable
years beginning on or after January 1, 1995.
§ 8619. Use of driver's license or identification card to
indicate organ or tissue donation.
Beginning as soon as practicable, but no later than January
1, 1995, or one year following the effective date of this
section, whichever is later, the Department of Transportation
shall redesign the driver's license and identification card
application system to process requests for information regarding
consent of the individual to organ or tissue donation. The
following question shall be asked:
Do you wish to have the organ donor designation printed
on your driver's license?
Only an affirmative response of an individual shall be noted on
the front of the driver's license or identification card and
shall clearly indicate the individual's intent to donate his
organs or tissue. A notation on an individual's driver's license
or identification card that he intends to donate his organs or
tissue is deemed sufficient to satisfy all requirements for
consent to organ or tissue donation.
§ 8620. Police and emergency personnel responsibilities.
Police and emergency personnel responding to the scene of an
accident or trauma shall take reasonable steps to insure that
the driver's license or personal identification card, donor card
or other document of gift and medical alert bracelet, if any, of
the individual involved in the accident or trauma accompanies
the individual to the hospital or other health care facility.
The hospital or other health care facility shall, within five
days, if practicable, return the driver's license or
identification card to the Department of Transportation,
accompanied by a form prescribed by the Department of
Transportation, if the individual involved in the accident is
deceased.
§ 8621. Organ Donation Awareness Trust Fund contributions.
Beginning as soon as practicable, but no later than January
1, 1995, the Department of Transportation shall provide an
applicant for an original or renewal driver's license or
identification card the opportunity to make a contribution of $1
to the fund. The contribution shall be added to the regular fee
for an original or renewal driver's license or identification
card. One contribution may be made for each issuance or renewal
of a license or identification card. Contributions shall be used
exclusively for the purposes set out in section 8622 (relating
to Organ Donation Awareness Trust Fund). The Department of
Transportation shall monthly determine the total amount
designated under this section and shall report that amount to
the State Treasurer, who shall transfer that amount to the Organ
Donation Awareness Trust Fund.
§ 8622. Organ Donation Awareness Trust Fund.
(a) Establishment.--All contributions received by the
Department of Transportation under section 8621 (relating to
Organ Donation Awareness Trust Fund contributions) and the
Department of Revenue under section 8618 (relating to voluntary
contribution system) and the Department of Health under section
8617(f) (relating to requests for anatomical gifts) shall be
deposited into a special fund in the State Treasury to be known
as the Organ Donation Awareness Trust Fund, which is hereby
established.
(b) Appropriation.--All moneys deposited in the fund and
interest which accrues from those funds are appropriated on a
continuing basis subject to the approval of the Governor to
compensate the Department of Transportation, the Department of
Health and the Department of Revenue for actual costs related to
implementation of this chapter, including all costs of the Organ
Donation Advisory Committee created in subsection (c). Any
remaining funds are appropriated subject to the approval of the
Governor for the following purposes:
(1) 10% of the total fund may be expended annually by
the Department of Health for reasonable hospital and other
medical expenses, funeral expenses and incidental expenses
incurred by the donor or donor's family in connection with
making a vital organ donation. Such expenditures shall not
exceed $3,000 per donor and shall only be made directly to
the funeral home, hospital or other service provider related
to the donation. No part of the fund shall be transferred
directly to the donor's family, next of kin or estate. The
advisory committee shall develop procedures, including the
development of a pilot program, necessary for effectuating
the purposes of this paragraph.
(2) 50% may be expended for grants to certified organ
procurement organizations for the development and
implementation of organ donation awareness programs in this
Commonwealth. The Department of Health shall develop and
administer this grant program, which is hereby established.
(3) 15% may be expended by the Department of Health, in
cooperation with certified organ procurement organizations,
for the Project-Make-A-Choice program, which shall include
information pamphlets designed by the Department of Health
relating to organ donor awareness and the laws regarding
organ donation, public information and public education about
contributing to the fund when obtaining or renewing a
driver's license and when completing a State individual
income tax return form.
(4) 25% may be expended by the Department of Education
for the implementation of organ donation awareness programs
in the secondary schools in this Commonwealth.
(c) Advisory committee.--The Organ Donation Advisory
Committee is hereby established, with membership as follows:
(1) Two representatives of organ procurement
organizations.
(2) Two representatives of tissue procurement providers.
(3) Six members representative of organ, tissue and eye
recipients, families of recipients and families of donors.
(4) Three representatives of acute care hospitals.
(5) One representative of the Department of Health.
(6) One representative of eye banks.
All members shall be appointed by the Governor. Appointments
shall be made in a manner that provides representation of the
northwest, north central, northeast, southwest, south central
and southeast regions of this Commonwealth. Members shall serve
five-year terms. The Governor may reappoint advisory committee
members for successive terms. Members of the advisory committee
shall remain in office until a successor is appointed and
qualified. If vacancies occur prior to completion of a term, the
Governor shall appoint another member in accordance with this
subsection to fill the unexpired term. The advisory committee
shall meet at least biannually to review progress in the area of
organ and tissue donation in this Commonwealth, recommend
education and awareness training programs, recommend priorities
in expenditures from the fund and advise the Secretary of Health
on matters relating to administration of the fund. The advisory
committee shall recommend legislation as it deems necessary to
fulfill the purposes of this chapter. The advisory committee
shall submit a report concerning its activities and progress to
the General Assembly within 30 days prior to the expiration of
each legislative session. The Department of Health shall
reimburse members of the advisory committee for all necessary
and reasonable travel and other expenses incurred in the
performance of their duties under this section.
(d) Reports.--The Department of Health and the Department of
Education shall submit an annual report to the General Assembly
on expenditures of fund moneys and any progress made in reducing
the number of potential donors who were not identified.
(e) Definition.--As used in this section, the term "vital
organ" means a heart, lung, liver, kidney, pancreas, small
bowel, large bowel or stomach for the purpose of
transplantation.
§ 8623. Confidentiality requirement.
The identity of the donor and of the recipient may not be
communicated unless expressly authorized by the recipient and
next of kin of the decedent.
§ 8624. Prohibited activities.
(a) Affiliates.--No organ procurement organization selected
by the Department of Health under section 8617(g) (relating to
requests for anatomical gifts) to conduct annual death reviews
may use that review authority or any powers or privileges
granted thereby to coerce or attempt to coerce a hospital to
select the organization or any tissue procurement provider
contractually affiliated with the organization as a designated
tissue procurement provider under section 8617(e).
(b) Unfair acts.--No organ procurement organization or
tissue procurement provider may disparage the services or
business of other procurement providers by false or misleading
representations of fact, engage in any other fraudulent conduct
to influence the selection by a hospital of a qualified tissue
procurement provider nor engage in unlawful competition or
discrimination. This subsection is not intended to restrict or
preclude any organ procurement organization or tissue
procurement provider from marketing or promoting its services in
the normal course of business.
SUBCHAPTER C
CORNEAL TRANSPLANTS
Sec.
8641. Removal of corneal tissue permitted under certain
circumstances.
8642. Limitation of liability.
§ 8641. Removal of corneal tissue permitted under certain
circumstances.
(a) General rule.--On a request from an authorized official
of an eye bank for corneal tissue, a coroner or medical examiner
may permit the removal of corneal tissue if all of the following
apply:
(1) The decedent from whom the tissue is to be removed
died under circumstances requiring an inquest.
(2) The coroner or medical examiner has made a
reasonable effort to contact persons listed in section 8611
(relating to persons who may execute anatomical gift).
(3) No objection by a person listed in section 8611 is
known by the coroner or medical examiner.
(4) The removal of the corneal tissue will not interfere
with the subsequent course of an investigation or autopsy or
alter the decedent's postmortem facial appearance.
(b) Definition.--As used in this section, the term "eye
bank" means a nonprofit corporation chartered under the laws of
this Commonwealth to obtain, store and distribute donor eyes to
be used by physicians or surgeons for corneal transplants,
research or other medical purposes and the medical activities of
which are directed by a physician or surgeon in this
Commonwealth.
§ 8642. Limitation of liability.
A person who acts in good faith in accordance with the
provisions of this subchapter shall not be subject to criminal
or civil liability arising from any action taken under this
subchapter. The immunity provided by this section shall not
extend to persons if damages result from the gross negligence,
recklessness or intentional misconduct of the person.
Section 9. Upon availability of funding established under 20
Pa.C.S. § 8622(b)(3), the Department of Education, in
cooperation with the Department of Health and organ procurement
organizations, shall establish a program that can be used for
secondary education purposes, which shall include:
(1) Information about State law relating to anatomical
gifts, including how to become an organ donor.
(2) General information about organ transplantation in
the United States.
Section 10. This act shall apply as follows:
(1) The amendment of 20 Pa.C.S. §§ 2101, 3101(a), 3102,
3121 and 3531 shall apply to the estates of decedents dying
on or after the effective date of this act.
(2) The amendment of 20 Pa.C.S. § 2502(2) shall apply to
wills executed on or after the effective date of this act.
(3) The amendment or addition of 20 Pa.C.S. §§ 2517,
2521, 3701, 6110, 6117 and 7183 shall apply to wills
executed, trusts created and conveyances made before, on or
after the effective date of this act.
(4) The amendment of 20 Pa.C.S. § 6111.2 shall apply to
beneficiary designations made before, on or after the
effective date of this act.
(5) The amendment of 20 Pa.C.S. § 6201 shall apply to
joint tenancies with a right of survivorship created before,
on or after the effective date of this act.
(6) The remainder of this act shall apply beginning with
the effective date of this act.
Section 11. This act shall take effect as follows:
(1) The amendment, addition or repeal of 20 Pa.C.S. §§
5404(b), 5602(a), 5603 and Ch. 86 shall take effect in 90
days.
(2) Section 9 of this act shall take effect in 90 days.
(3) The remainder of this act shall take effect in 60
days.
APPROVED--The 1st day of December, A. D. 1994.
ROBERT P. CASEY
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