2023 Montana Code Annotated › Title 72. Estates, Trusts, and Fiduciary Relationships › Chapter 17. Anatomical Gift Act › Part 2. Execution and Operation of Anatomical Gift › 72-17-201. Making, amending, revoking, and refusing to make anatomical gifts by individual

72-17-201. Making, amending, revoking, and refusing to make anatomical gifts by individual.
(1) An anatomical gift of a donor's body or part may be made during the life of the donor for the purpose of transplantation, therapy, research, or education in the manner provided in this section by:
(a) the donor if the donor is an adult or if the donor is a minor and is:
(i) emancipated; or
(ii) authorized under state law to apply for a driver's license because the donor is at least 15 years of age;
(b) an agent of the donor unless the power of attorney for health care or other record prohibits the agent from making an anatomical gift;
(c) a parent of the donor if the donor is an unemancipated minor; or
(d) the donor's guardian.
(2) A donor may make an anatomical gift:
(a) by authorizing a statement or symbol indicating that the donor has made an anatomical gift to be imprinted on the donor's driver's license or identification card;
(b) by a statement contained in a will;
(c) during a terminal illness or injury of the donor, by any form of communication addressed to at least two adults, at least one of whom is a disinterested witness; or
(d) as provided in subsection (3).
(3) A donor or other person authorized to make an anatomical gift under subsection (1) may make a gift by a donor card or other record signed by the donor or other person making the gift or by authorizing that a statement or symbol indicating that the donor has made an anatomical gift be included on a donor registry. If the donor or other person is physically unable to sign the record, the record may be signed by another individual at the direction of the donor or the other person and must:
(a) be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or other person; and
(b) state that it has been signed and witnessed as provided in subsection (3)(a).
(4) Revocation, suspension, expiration, or cancellation of a driver's license or identification card issued to a donor does not invalidate the anatomical gift.
(5) A document of gift may designate a particular physician or surgeon 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 anatomical gift may employ or authorize any physician, surgeon, technician, or enucleator to carry out the appropriate procedures.
(6) An anatomical gift by will takes effect upon the donor's death, whether or not the will is probated. If, after the donor's death, the will is declared invalid for testamentary purposes, the validity of the anatomical gift is unaffected. An anatomical gift made in accordance with this section is sufficient legal authority for procurement without additional authority from the donor or the donor's family or estate.
(7) Except as provided in subsection (17) and subject to subsection (14), a donor or other person authorized to make an anatomical gift under subsection (1) may amend or revoke an anatomical gift only by:
(a) a record signed by:
(i) the donor or the other person; or
(ii) subject to subsection (8), another individual acting at the direction of the donor or the other person if the donor or other person is physically unable to sign;
(b) any form of communication during a terminal illness or injury addressed to at least two adults, one of whom is a disinterested witness;
(c) the delivery of a signed statement to a specified donee to whom a document of gift had been delivered;
(d) a later-executed document of gift that amends or revokes a previous anatomical gift or portion of an anatomical gift, either expressly or by inconsistency; or
(e) destroying or canceling the document of gift or portion of the document of gift used to make the anatomical gift with the intent to revoke the anatomical gift.
(8) A record signed pursuant to subsection (7)(a)(ii) must:
(a) be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and
(b) state that it has been signed and witnessed as provided in subsection (8)(a).
(9) A donor shall notify the federally designated organ procurement organization of the destruction, cancellation, or mutilation of the document for the purpose of removing the person's name from the organ and tissue donation registry created in 72-17-105 and 72-17-106.
(10) The donor of an anatomical gift made by will may amend or revoke the anatomical gift in the manner provided for amendment or revocation of wills or as provided in subsection (7).
(11) (a) An individual may refuse to make an anatomical gift of the individual's body or part by:
(i) a writing signed in the same manner as a document of gift;
(ii) a statement attached to or imprinted on a donor's driver's license or identification card;
(iii) the individual's will, whether or not the will is admitted to probate or invalidated after the individual's death; or
(iv) any other writing used to identify the individual as refusing to make an anatomical gift.
(b) During a terminal illness or injury, the refusal may be an oral statement or other form of communication addressed to at least two adults, at least one of whom is a disinterested witness.
(12) An individual who has made a refusal may amend or revoke a refusal:
(a) in the manner provided in subsection (11) for making a refusal;
(b) by subsequently making an anatomical gift pursuant to subsection (2) or (3) that is inconsistent with the refusal; or
(c) by destroying or canceling the record evidencing the refusal or the portion of the record used to make the refusal with the intent to revoke the refusal.
(13) Except as otherwise provided in subsection (17) and subject to subsection (15), in the absence of an express, contrary indication by the donor, a person other than the donor is barred from making, amending, or revoking an anatomical gift of a donor's body or part if the donor made an anatomical gift of the donor's body or part under subsection (2) or (3) or an amendment to an anatomical gift under subsection (7). The donor's family or health care provider may not refuse to honor the anatomical gift or thwart the procurement of the donation.
(14) Except as otherwise provided in subsection (18), in the absence of an express, contrary indication by the individual set forth in the refusal, an individual's unrevoked refusal to make an anatomical gift of the individual's body or a part bars all other persons from making an anatomical gift of the individual's body or a part.
(15) In the absence of an express, contrary indication by the donor or other person authorized under this section to make an anatomical gift, an anatomical gift of a part for one or more of the purposes set forth in subsection (1) is neither a refusal to give other parts nor a limitation on an anatomical gift under 72-17-214 or on a removal or release of other parts under 72-17-215.
(16) In the absence of contrary indications by the donor, a donor's revocation or amendment of an anatomical gift of the donor's body or part is not a refusal to make another anatomical gift and does not bar another person specified in 72-17-214 or this section from making an anatomical gift of the donor's body or part. If the donor intends a revocation to be a refusal to make an anatomical gift, the donor shall make the refusal pursuant to subsection (11).
(17) If a donor who is an unemancipated minor dies, a parent of the donor who is reasonably available may revoke or amend an anatomical gift of the donor's body or part.
(18) If an unemancipated minor who signed a refusal dies, a parent of the minor who is reasonably available may revoke the minor's refusal.
History: En. Sec. 2, Ch. 340, L. 1969; R.C.M. 1947, 69-2316(a) thru (c); amd. Sec. 4, Ch. 540, L. 1989; amd. Sec. 4, Ch. 230, L. 2003; amd. Sec. 7, Ch. 345, L. 2007.