Advance Health Care Directives
and Anatomical Gifts
Scott M. Solkoff
ELDER LAW COLLEGE
September 25, 2017
In Elder Law, there can be no more a fundamental, core issue than that of end‐of‐life
health care decision making. The right of a person to manifest his or her own health care
destiny does not come from words in the constitutions. Still, the courts have found that
some of our most fundamental freedoms appear in the federal constitution and that of the
various states because they were assumed by our founders to be so inalienable and so
fundamental as to be necessary for a free people. Such is the right to control our own
health care. The courts have found the right to control our own health care to be grounded
in privacy and other more explicit constitutional provisions. Cruzan by Cruzan v. Director,
Missouri Dept. of Health, 497 U.S. 261 (1990); In re Guardianship of Browning, 568 So. 2d 4
(Fla. 1990); John F. Kennedy Memorial Hosp., Inc. v. Bludworth, 452 So. 2d 921 799 (Fla.
As Elder Law Attorneys, we have the privilege and responsibility to inform our
clients about the choices they can make in their own health care. Our clients commonly do
not know what questions to ask or even what issues are most important. It is up to us to
frame the issues without bias or judgment and to then inform, guide, draft and enforce our
clients’ rights. This article and our accompanying talk cover these rights with practice tips
such as talking points, drafting tips, and citations to the law. This article also draws from
Chapter 27, “Advance Health Care Directives and Anatomical Gifts” in Solkoff & Solkoff, Elder
Law Practice Guide (17th ed. 2016‐2017).
The recording of the ensuing discussion during the September 2017 Q & A Teleconference on this vital topic, including the many Practice Tips, is on the Member Portal (accessible by members), along with the full article linked to the teleconference.