Organ Donation and Wills

If a person wants to donate their organs after their death, it is important that family and friends know.

There are two main ways to indicate your intention to donate your organs upon your death. Commonly people indicate their intention to donate their organs when applying for a driver’s licence.

A NSW licence offers two options.  Holders may specify that they have elected to donate:

  • Any organ or tissue; or
  • Particular organs or tissues.

 

You can also register your wish to be an organ donor on the Australian Organ Donation Register administered by the Department of Human Services.

However, even if you indicate your intention on your driver’s licence or register your wish to be an organ donor, there is no guarantee that your organs will end up being donated – this may be because your organs are unsuitable for donation. However, in many cases, it is the family of the deceased who prevent organ donation. For example, in New South Wales around half the people who indicate their intention to donate their organs upon death are denied from having their wishes followed.

Under s23(1) of the Human Tissue Act 1983 (NSW) hospital staff may remove the tissue of a deceased person if the deceased has indicated their consent to such removal during their life time. However, in practice hospital staff will not remove tissue without consulting the deceased’s next of kin.

When a person dies and has indicated that they wish to donate their organs their family members will be asked:

  1. to confirm that the deceased had not changed their mind since they recorded their intention to donate their organs; and
  2. to consent to the deceased’s organs being donated.

 

If a family member states that the dead person had recently changed their mind as to donating their organs or fails to consent to the dead person’s organs being donated, no donation will occur.

Another way you can indicate your intention to donate your organs is through your Will. For example, you can include in your Will the following:

“I direct my Trustees that I wish to donate any of my suitable organs and tissue for transplantation.”

Alternatively, you can specify particular organs you wish to donate, for example:

“I direct my Trustees that I wish to donate my kidneys, heart, lungs, liver, pancreas, heart valves and bone tissue. I do not wish or consent to the donation of my skin or eye tissue.”

Technically a deceased person cannot own their corpse and therefore cannot legally bequeath it. However, in your Will, you are permitted to include directives in relation to the disposal of your body. This can include the wish that your organs be donated. It is less likely that your family will withhold their consent to organ donation if you leave such a directive in your Will. And it will be easier for the medical people responsible for transplant and organ issues to deal with the relatives of the deceased person.

While leaving a directive in your Will indicating your wish to donate your organs may persuade family members to consent to your wishes, it is important to talk to them about this decision. The nature of organ donation is that it must be carried out as soon as possible after death. If you have not spoken to your family about your decision, there is a risk that your wishes may not be observed because your family has not had an opportunity to read your Will before they are required to give their consent.

For more information please contact our experienced Wills and Estate Planning team:  4944 3322.