Organ donation – do I have a choice?

19 Oct 2020

Last month the nation celebrated Organ Donation Week and earlier this year there was a change in the law which has helped countless lives, but has left some people asking themselves if they have a choice when it comes to the subject of organ donation. The answer is yes, you do.

Many of our clients are prompted to consider the subject of organ donation and funeral wishes when writing their Will. Prior to the change in the law, if you wanted to donate your organs on death then you needed to have communicated this wish with loved ones or registered as an organ donor on the NHS Organ Donor Register.

For many of us, the idea of talking to loved ones about the topic of organ donation is just too morbid and upsetting, and some clients even feel that it will strangely tempt fate! Well, if you have always been minded to be an organ donor on death, then the change in the law means that you are no longer required to communicate this wish. There is now an ‘opt- out’ system rather than an ‘opt-in’ system in place, with all adults in England being treated as agreeing to be potential donors on death.

There are, however, those who are part of an excluded group of persons to which the understanding that all adults agree to become a donor does not apply. The excluded groups are:

  • those under 18 years of age,
  • people who lack the mental capacity to understand the new arrangements and take the necessary action,
  • visitors to England and those not living here voluntarily, and
  • people who have lived in England for less than 12 months before their death.

The issue of lack of capacity may well become a problem in the future should the law take a U-turn and you are unable to communicate your wishes in respect of organ donation.  In order to safeguard against this, it is advisable to put in place Lasting Powers of Attorney or Advance Directives. These legal documents could be used as a tool to allow you to express your wishes without necessarily verbalising them. Setting up legal documents such as Lasting Powers of Attorney and Advance directives provide the perfect opportunity to really consider your wishes and can be used as a spring board into the subject of organ donation.

As stated above, you do still have the choice. If you decide that you do not wish to be a donor then you need to actively register your decision to opt-out or tell family that you do not wish to be treated as a donor. If you wish to be an organ donor then ‘deemed consent’ means that you do not need to do anything. Having said that, the best way to ensure that your decision is honoured is to tell people your wishes.

Following your death, family or those closest to you are consulted by medical professionals about organ donation, not only out of consideration to those left behind at a difficult time but also to establish whether or not there are any reasons why a donation should or should not go ahead, or to establish information that could alter any previous decision you have made about organ donation in the past. It is, therefore, best to have talked to your family about such matters so they fully understand the reasons behind your decision.

To be clear, family members or those closest to you do not have a legal right to overrule your decision to opt-in or opt-out. If you are not keen on the idea of bringing up the subject of organ donation at dinner or over a cup of tea, then this is something that can be written into your Will or added as a note which accompanies your Will; but be mindful of the fact that often your Will is not looked at until after your death and the opportunity of donation may have passed. One way around this, is to authorise your solicitor to provide a copy of your Will to your chosen Executors who are often (but not always) family members or people closest to you.

If you would like to discuss the subject of organ donation, making a Will or preparing Lasting Powers of Attorney then contact a member of our Private Client Team to arrange a mutually convenient and safe appointment on 0800 2800 421 or get in touch here.