Estates & Wills & Trusts

Incorporating organ donation into your estate plan

While much time and attention is spent during the estate planning process making arrangements for one’s burial and/or for the transfer of one’s assets, organ donation is often overlooked, Toronto estates and trusts lawyers Ian M. Hull and Suzana Popovic-Montag in Huffington Post.

More than 1,500 people are on the waiting list for a life-saving organ transplant, yet “despite the apparent and overwhelming need for organs and tissues, Canada has one of the lowest rates of organ donation in the world,” write Hull and Popovic-Montag, partners with Hull & Hull LLP.

“While many countries including Spain, Italy, Austria and Belgium have adopted the model of ‘presumed consent,’ Canada maintains the ‘express consent’ model for organ donation. As a result, Canadians are not ‘presumed’ to have consented to the donation of their organs and tissues, but rather must make an active election consenting to donation before their organs and tissues can even be considered for donation,” they write.

Organ donation in Ontario is governed by the Trillium Gift of Life Network Act, which sets out who may give consent to donate organs for implantation, medical education or for scientific research.

As long as an individual is over the age of 16, consent can be given in writing or verbally. However, Hull and Popovic-Montag note that verbal consent is only valid if it is given during the donor’s last illness, and in the presence of two witnesses.

“While traditionally organ donor cards were the form of ‘written consent’ used to notify others, all too often these cards were not immediately available at the time of death, and were not discovered until it was too late,” they write in Huffington Post. “As a result, the Trillium Gift of Life Network (TGLN) has established an online consent register, which can be accessed here.

Once an election is made it will be stored in the TGLN’s secure database and will only be accessed in the event of death or imminent death after all life-saving efforts have failed.”

If an individual does not make an election during his or her lifetime, the decision will fall to his or her spouse. In the case where no spouse exists — or if the individual’s spouse is unavailable — the responsibility will fall to his or her children, then parents, then siblings, then next of kin, and finally to the person in legal possession of his or her body, in that order.

“Unfortunately, family members do not always know whether their loved one would have wanted to donate their organs or tissues, and as a result they often choose not to donate,” they write.

If you wish to donate your organs and or tissues, you should register your consent with the TGLN onlinel as discuss your wishes with your family members and/or estate trustee and incorporate your election into your will.

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