Today, in Ontario, over 1,500 people are waiting for a life-saving transplant. ... TGLN Act permits the individual's fam
ORGAN DONATION FOR ESTATE LAWYERS SUZANA POPOVIC-MONTAG & IAN M. HULL Today, in Ontario, over 1,500 people are waiting for a life-saving transplant. One donor can save up to eight lives through organ donation and enhance as many as 75 others through tissue donation.1 Despite the overwhelming need for organs and tissues, however, Canada has one of the lowest rates of organ donation in the world.2 While over 85% of Ontarians support organ donation, only 25% have actually registered their consent to donate through the Trillium Gift of Life Network.3 Organ and tissue donation may not be top of mind for most people; nonetheless, wills and estates practitioners have the unique opportunity to bring this important and relevant issue to the attention of clients who are already considering end-of-life issues. In this article, we take the opportunity to outline the legislation currently governing organ donation in Ontario, explain how the operation of that legislation can create issues for the implementation of a testator’s wishes, and suggest how those issues may be addressed from an intake and drafting perspective. Express Consent in Canada In Canada, organ and tissue donation come under provincial jurisdiction as part of healthcare. As a result, there are different legislative approaches across the various Canadian provinces. Despite these differences, however, all provinces operate on an "express consent" basis. Within this express consent model, donation can only occur where an individual has consented to the removal of their organs after his/her death. This can be contrasted with many European countries, including Spain, Belgium, Italy and Austria, each of which have adopted a model of “presumed consent”.4 Under the presumed consent model, organs and tissue are considered property of the state unless an individual actively opts out.
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Trillian Gift of Life Network, “Registration Stats”, viewed at https://beadonor.ca./scoreboard See Derek Tsang, “A Comprehensive Approach to Organ Donation in Ontario,” University of Toronto, February 28 2008. 3 Supra, note 20. 4 See Jennifer Dolling, “Opting in to an opt-out system: Presumed Consent as a Valid Policy Choice for Ontario’s Cadaveric Organ Shortage,” Master of Laws Thesis submitted to the Graduate Department of the Faculty of Law, University of Toronto, at 21 - 22 (2009). 2
-2Ontario’s Trillium Gift of Life Network Act The relevant legislation in Ontario is the Trillium Gift of Life Network Act (the “TGLN Act”).5 The TGLN Act sets out the requirements for post-mortem consent to organ donation. Pursuant to section 4 of the TGLN Act, prior to death, consent may be provided by a donor who is 16 years of age or older6 in writing that is signed or, alternatively, orally in the presence of at least two witnesses during a person’s last illness.7 In the event no written or oral consent is provided by an individual prior to his/her death, the TGLN Act permits the individual’s family, or the person lawfully in possession of his/her body upon their death, to consent to donation on his/her behalf. Section 5 of the TGLN Act creates a legislative priority for this consent after an individual’s death. The deceased’s (non-estranged) spouse has first priority; if none exists or is not readily available, then the deceased’s parents may provide consent; if none exist, then the deceased’s brothers and sisters may provide consent; if none of them exist, then any next of kin may provide consent and, finally, if there are none, then a non-family member lawfully possessing the deceased’s body will have the authority to consent on the deceased’s behalf. At common law, the person who will be in lawful possession of the deceased’s body at death will be the estate trustee of his/her estate, as appointed in their will, or the administrator of the estate, as appointed by the court in the event there is no will.8 Consent ‘In Writing’ – Making an Election The first issue, therefore, arises with respect to making an election. As outlined above, if no election is made, it will fall on the client’s family or executor to decide on their behalf. Their decision might not accurately reflect the client’s intentions in this regard. In addition, by registering an election, your client will relieve his/her family of the burden of making this difficult decision on their behalf. The traditional procedure for making this election is to sign a donor card and register the corresponding election online at www.beadonor.ca. Once registered, a new health card will be sent in the mail which includes the election. The registered decision will also be stored in the Ministry of Health and Long-Term Care database, to be disclosed only upon the individual’s
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R.S.O. 1990, c. H.20. Ibid, s. 4 (1). 7 Ibid, s. 4 (1)(a)-(b). 8 See Williams v. Williams, (1882) 20 Ch. D. 659, 51 L.J. Ch. 385, 46 L.T. 275, 46 J.P. 726, 15 Cox 39. 6
-3death to Trillium Gift of Life Network9 when all life-saving efforts have failed. This decision can then be shared with the individual’s family during any end-of-life discussions. In addition, section 1 of the Act also defines “writing” to include a will and any other testamentary instrument, whether or not probate has been applied for or granted, and whether or not the will or other testamentary instrument is valid.10 Therefore, the inclusion of one’s intentions in their will is a valid form of making an election. If the client’s intention is to be an organ donor, it is recommended that they both register online and incorporate their intentions in their will. The Importance of Communicating One’s Election Section 182(b) of the Criminal Code11 makes it an offense to improperly or indecently interfere with, or offer any indignity to, a dead human body. This provision makes it a statutory offense for medical professionals to remove organs without the requisite consent. Section 4(3) of the TGLN Act states: “Upon the death of a person who has given a consent under this section, the consent is binding and is full authority for the use of the body or the removal and use of the specified part or parts for the purpose specified, except that no person shall act upon a consent given under this section if the person has reason to believe that it was subsequently withdrawn.” (our emphasis) Therefore, while section 4(3) of the TGLN Act provides that written consent provided prior to death is "binding and full authority”, thereby eliminating any liability for medical staff under the Criminal Code provision, the terms of that same provision also provide an exception so as to, in effect, reinstate possible liability. Medical staff often have no way of verifying whether a deceased who previously made an election to donate has subsequently changed their mind, particularly given the fact that such an intention is revocable at any time12. Therefore, even where the donor has already recorded consent, medical staff, as protection from liability, will generally also request the family's permission prior to proceeding. And, while the deceased’s family does not legally get a veto as
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Ontario’s organ and tissue donation and transplantation agency. Trillium Gift of Life Network Act, R.S.O. 1990, c. H.20, s. 1. 11 R.S., c. C-34. 12 See Trillium Gift of Life Network, “About Donation”, viewed at https://beadonor.ca./about-donation. 10
-4to organ donation, which would override the deceased’s intentions, medical staff are often reluctant to challenge families, particularly given the circumstances in which the decision must be made. This therefore highlights the importance of the second issue. Even if your client has registered their election and that election is expressly documented in their will, it could still be up to their family or estate trustee to ultimately decide whether or not to honour that election. As a result, in addition to making and expressly documenting an election, it is important to ensure your client communicates their chosen election to their family members and to their estate trustee, so there is no uncertainty as to what was intended and/or desired. Powers of Attorney If your client remains concerned that his/her family will not adhere to their wishes, you can also discuss the appointment of a Power of Attorney to ensure his/her wishes are followed when he/she is no longer able to communicate their intentions. Conclusion In summary, the issue of organ donation is a very important one for estate solicitors. For the purposes of estate planning, we need to ensure that we are discussing with our clients not only the importance of making an election but also the necessity of communicating those wishes to family members and future estate trustees. To assist in this regard, we set out some suggested checklist questions/considerations for drafting solicitors:
Does the testator wish for organs and/or tissues to be donated following death?
Discuss registration of consent with Trillium Gift of Life
Discuss importance of communication to estate trustee of wishes re: organ donation
Discuss importance of communication to family members of wishes re: organ donation; and
Consider appointment of a Power of Attorney
Drafting solicitors may also wish to review the Toolkit for Legal Professionals prepared by the Trillium Gift of Life Network that can be found at www.giftoflife.on.ca.
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