Do We Really Have To Define Death? Doesn't Everyone Already Know What It Means?

Short answer: YES. We had to define it. Here's why:

The Uniform Determination of Death Act (“UDDA”), adopted by all states  and the District of Columbia (though some have modified it) offers two definitions for when an individual may legally be declared dead: Irreversible cessation of circulatory and respiratory functions; or Irreversible cessation of all functions of the entire brain, including the brain stem.

Circulatory/Respiratory Death: The Heart Stops

Circulatory Death is when the heart stops beating on its own (no heartbeat without mechanical intervention: without a heartbeat, the blood won't move through the body, the lungs stop so there's no air, and the rest of the organs start shutting down because they all need blood and oxygen to function ) but the person is not brain dead yet (there is still some electrical/synaptic activity, for now) and has no hope of actual recovery.

Like Anne Heche, it may involve medical personnel who have transported the person from the scene of an horrific car wreck to the emergency department while continuously performing chest compressions to simulate the heart beat. In the hospital emergency department or operating room, when the patient’s heart stops beating on it’s own (it is very well documented at this point), the medical team waits for several minutes to ensure that the heart has completely ceased functioning and will not function without mechanical (outside) intervention. At this time, a physician from the hospital will pronounce the patient dead. This can also happen when the person has some illness with no way to recover; usually it is diagnosis of “terminal cancer” that has spread throughout the body to the point where chemotherapy is no longer an option.

Brain Death

According to the UDDA, brain death is defined as the irreversible cessation of all functions of the entire brain, including the brain stem. A brain-dead person is dead, although his or her cardiopulmonary (heart/circulatory system and lungs) functioning may be artificially maintained for some time. Because of the neurological nature of brain death, a controlled and extensive clinical exam must occur before a qualified, authorized professional can make that final declaration. Brain death is final and finite; it is not the same as a being in coma or persistent vegetative state.

Declaration of Death: State Laws

Either scenario is often depicted in movies and television dramas, with “Time of death, 2:14 a.m.” with the high-pitched, uninterrupted whine of heart monitors in the background. Anne Heche was declared brain dead on Friday afternoon, but her family announced her body was not taken off life-support in anticipation of organ donation.

Although all states (and the District of Columbia) have adopted the Uniform Declaration of Death Act -- most using the exact wording of UDDA -- some state laws add additional regulations. Some examples include:

Florida: Determination of death must be made by two doctors -- one the treating physician and the other a board-eligible neurologist, neurosurgeon, internist, pediatrician, surgeon, or anesthesiologist.

Texas: Except in situations where a patient is on life support, the determination of death (including brain death) may be made by a registered nurse or physician's assistant if the hospital's written policy allows.

Colorado: declaration of death; Disposition of last remains; and medical Durable Powers of attorney (Living will)

In the State of Colorado, there are laws, regulations, and standards governing an official declaration of death: who can make that declaration; when that declaration can be made; and how – the criteria that must be met before the declaration may be made.  Effectively, Colorado codified the UDDA.

In Colorado, C.R.S. § 12-36-136 provides:

(1) An individual is dead if:

(a) [they have] sustained irreversible cessation of circulatory and respiratory functions; or

(b) [they have] sustained irreversible cessation of all functions of the entire brain, including the brain stem.

(2) A determination of death under this section shall be in accordance with accepted medical standards.

The Disposition of Last Remains , addressed in Colorado at C.R.S. §15-19-103 et seq. , covers several aspects of the disposition of someone who has been declared medically dead – and therefore is legally dead. In the United States, there are three major customs: (1) the rituals performed for a dead person, which can include a visitation or wake; (2) a funeral or memorial service; and (3) the burial service or inurnment.

The Colorado statute contains a form for the declaration of disposition of last remains at C.R.S. 15-19-107 , and it includes some very important choices for everyone to consider, including: burial, cremation, entombment, or “other” (which includes a disposition as determined by a named designee); and, requests concerning a funeral, memorial service and other special instructions including “Anatomical Gifts” -- a.k.a. Organ Donation. (NOTE: Colorado law does not address cryogenic preservation and biological continuity, but does cover assistive reproductive technology; please be sure to consult with a qualified legal professional if you have undergone IVF treatment or donated sperm.) All Colorado residents can easily sign up to be an organ donor with the Department of Motor Vehicles (a division of the Colorado Department of Revenue) when they apply for their state ID or driver’s license. They are identified by a small red heart with an embedded “Y” on the lower right corner of the front of their license or identification card.

The Medical Durable Power of Attorney (“MDPOA”) is found at C.R.S. § 15-14-506. Subsection 3 (applicable to the aforementioned types of death) states:

"An agent appointed in a medical durable power of attorney may provide informed consent to or refusal of medical treatment on behalf of a principal who lacks decisional capacity and shall have the same power to make medical treatment decisions the principal would have if the principal did not lack such decisional capacity."

An MDPOA is such a “declaration” as defined by C.R.S. §15-19-103. The MDPOA may also be referred to as a Living Will, especially if you have a thorough Estate Plan in place. It often contains a statement of wishes, and can give authority to the agent upon injury or death, to make a determination of disposition of last remains of the principal, including organ donation.

At The McKenzie Law Firm, we highly recommend having at least some form of an end-of-life plan in place, even if it’s incredibly simple: “I do NOT want to be placed on life support;” “I only want to be placed on life support until it is determined my body will not recover/function without it;” “I want to be an organ donor;” "No funeral services;" "Cremation, and spread my ashes in the fire pit we built at our camping grounds in Ophir Creek;" or “Donate my body to science.”  Too many people are unwilling to consider having these plans in place, and even fewer are willing to discuss their wishes with family and friends. Unfortunately, no-one knows how much time they have left – we may be given an estimate (“six months to a year, at most,”) but most of us do not get to pick the exact date and time.

What is most important to know is this: hospitals and emergency medical professionals will make every effort to save a patient’s life (regardless of their status as a donor), unless the patient somehow tells them NO . This is where the MDPOA plays the starring role. We tell clients " If you don't write it down, it won't happen. " It appears that Ms. Heche did take the time to memorialize (in writing) and declare her wishes, discussed them with her family and friends, and then appropriate measures were taken to ensure her wishes were carried out. In short: she decided what she wanted to happen after she died.

When a loved one (child or adult) is injured, in a near-fatal or fatal incident, the family and friends are often overwhelmed with trying to decide what to do. If the person is unconscious due to head injury, but also only has a broken leg, who is able to authorize medical treatment? What about an elderly person who has a stroke, falls down, and is still unconscious a week later: what can medical personnel do, how long can they do it, and who do they need to talk with to get permission? Answers to these questions (and many more) will also vary based upon age (over or under eighteen/legal adult), marital status, and whether there is some sort of declaration by the individual already officially in place. 

Fortunately, The McKenzie Law Firm can help you with all aspects of Guardianship, Conservatorship, Estate Planning, and Estate or Trust Administration. We are able to help our clients navigate the confusing situations that often occur with these and their situations. As a full-service firm, we can help you understand what paperwork is necessary, what is and is not required by law, shield clients from unwanted contact, and ensure that their wishes are carried out.

What Next?

1. Give us a call at 720-821-7604 to schedule a "Discovery Session" at which we can determine whether our firm would be a good fit for your needs. Or fill out our contact form to have us call you.
2. Visit our estate planning page to learn more about how proactively thinking through your estate plan can protect you and your family, minimize hassle, lower the chance of family discord, and minimize or eliminate taxes.
3. Learn more by reading our blog or watching our videos .