Who has the Last Word on Body Donation?
A Queensland resident who wishes to donate their body for therapeutic (transplant to the body of a living person) or medical/scientific purposes may do everything right in expressing these wishes before their death. They could:
register themselves as an Organ Donor on the National Register,
make a direction in their Will to donate their body tissue, and
make a Statutory Declaration the day before they die stating that they want to donate their body tissue.
They could take all these measures, and yet the decision may still be at the whim of someone else!
There is a strange quirk of the Transplantation and Anatomy Act 1979 (Qld), that the “senior available next of kin” of a deceased person must give consent to the use of the deceased’s body for therapeutic or medical/scientific purposes. The reasoning of such a requirement is that it provides a Hospital with the assurance by the deceased’s loved ones that the deceased did not change their mind since the time they made any directions while they were alive.
“Senior available next of kin” is defined with the following priority:
a spouse,
a child (who is 18 years or older),
a parent, and
a sibling (who is 18 years or older).
The issues that this requirement presents recently became apparent to us when Sue approached us to assist her in her Estate Planning. Sue had strong views when it came to the donation of her body tissue upon her death. She had suffered organ failure herself, and would not have survived but for an anonymous organ donor. Sue felt like she owed it to that person to donate her organs upon her death, and sought this guarantee from us.
The problem was that Sue had a son, James, who felt as strongly as his mother, but instead was against all forms of organ donation. Sue was sure that if James was asked to consent to the donation of Sue’s body, James would object.
Sue also had a brother, Michael, who she trusted to give consent.
According to the definition of “Senior available next of kin”, James, as Sue’s son, had priority over Michael, Sue’s brother. Our challenge was to find a way to ensure that Sue’s wishes were carried out upon her death. Perhaps the most direct option available was for Sue and James to have a conversation, and hopefully Sue would be assured that although James didn’t agree with organ donation on principle, he would respect Sue’s wishes. Needless to say, the conversation did not go this way.
We decided that the best option for Sue was to use the term “available” in “senior available next of kin” to our advantage. We drafted an “Executor’s Dossier”, a document that provides an Executor with more detail that will assist them in their job to follow the directions of the Will (for more information on Estate Administration, click here). In Sue’s Executor’s Dossier, we outlined the situation to her Executor, who she trusted more than James. We also requested the Executor to refrain from notifying James of Sue’s death, until such time that it is impossible for James to object to the use of Sue’s body for therapeutic purposes.
The intention is that because James will not be aware of Sue’s death, he won’t be “available” as is required by law. The Executor’s Dossier also stated that Sue wished for only Michael to be the “Senior available next of kin”, for the purposes of giving consent. This solution provided Sue with the assurance that her body will be available for donation upon her death.
Of course, the same issue would arise for a Will-maker who doesn’t want their body donated, but is concerned about a family member who may not hold the same views. It is an unfortunate aspect of Queensland law that this kind of solution is needed. However, we are proud to be able to provide our clients with specialised, tailored advice that gets to the heart of their wishes, no matter what may stand in the way. To book an initial consultation with us, click the button below.