It’s what’s on the inside that counts
By Ian Hull
Money, heirlooms and other property are not the only items one can leave behind on death. Much time and attention is spent on making arrangements for burial and on other aspects of estate planning. However, often overlooked during the estate planning process are the most valuable gifts a person has to give – their organs.
Although an emotionally charged and deeply personal subject, the decision to donate or not to donate organs ought to be considered when planning ahead for what happens when we die.
The regime for organ donation in Ontario is governed by the Trillium Gift of Life Network Act. The Act sets out who may give consent to donate organs for implantation, for medical education, or for scientific research. Consent can be given by the donor in writing at any time, so long as he or she is over the age of sixteen. Consent can also be given verbally, but verbal consent is only valid if it is given during the donor’s last illness, and in the presence of two witnesses. An organ donor card may be helpful as it may constitute written consent. However, if the card is not immediately available at the time of death, it may not be discovered until it is too late.
Many difficult end-of-life decisions can be dealt with by way of a power of attorney for personal care such as to what extent extraordinary life-extending measures may be taken. This can save loved ones from having to make these agonizing decisions under such trying circumstances. Unfortunately, this is not the case when it comes to organ donation. A power of attorney ceases to operate on death. The Substitute Decisions Act at section 66(14), read together with section 67, specifically exempts “[t]he removal of regenerative or non-regenerative tissue for implantation in another person’s body” from the ambit of the Act, and therefore the powers that can be granted under a power of attorney.
If there is no consent from the potential donor, this difficult decision is left in the hands of the grieving family. The person’s spouse, if available, will be forced to decide during one of the most difficult times of his or her life. If there is no spouse or if the spouse is unavailable, the responsibility will fall to the person’s children, then parents, then siblings, then next of kin, and finally to the person in legal possession of the body, in that order.
It is very important, therefore, that your wishes with respect to organ donation are made known in advance to your loved ones or to whoever may be at your bedside at the time of death. While not an easy conversation to initiate, it is a very important one to have. The issue should be given some attention when preparing a will or estate plan, giving a power of attorney, or before undergoing a risky medical procedure.
The most effective way to ensure that your wishes are followed at the time of death is to register with the Trillium Gift of Life Network. The Network allows you to register your consent in a secure database that will only be accessed in the event of your death or imminent death after all life-saving efforts have failed. It is a sure and secure way to make known your wishes either to donate or not to donate. Online registration is available here.
The Trillium Gift of Life Network is a great resource for information on organ donation. Whether you would prefer to preserve the integrity of your body on death, or to give a potentially life-saving gift, it is important to take the proper steps in advance to ensure that your most important testamentary wishes are followed. Read Toronto Estate Law Blog
