Over 85% of Ontarians support organ donation, yet Ontario has one of the lowest rates of organ donation in the world. This gives estate practitioners the perfect opportunity to discuss organ donation with their clients who are already thinking about end-of-life issues.

What you need to know about organ donations in Ontario

• Organ and tissue donation falls under provincial jurisdiction
• All provinces, including Ontario, operate on an “express consent” basis which means that donation can only occur when an individual has consented to it
• Consent can be provided by a donor who is 16 years of age or older either in writing or orally (if consent is given orally it must be in the presence of at least two witnesses)
• If no consent is provided, the individual’s family or the person lawfully in possession of the body can consent to donation on their behalf
• The inclusion of one’s intentions for organ donation in their will is a valid form of making an election

Issues that arise

• Making an election
• If no election is made, the decision about whether to donate the individual’s organs  falls on the client’s family or executor to decide on their behalf
• This may cause a problem because their decision might not reflect the individual’s intentions
• If a client is concerned that his/her family may not make a decision that will reflect his/her intentions you can discuss appointing a Power of Attorney to ensure his/her wishes are followed
• The importance of communicating one’s election
• Medical staff often have no way of verifying whether an individual who previously made an election has changed their mind
• Therefore, even if a donor has recorded consent, medical staff often request the family’s permission prior to proceeding (as protection from liability)
• However, if the family claims that the individual did not consent, medical staff are often reluctant to challenge families’ wishes
• This highlights the importance of ensuring your client communicates their chosen election to their family members and estate trustee

Recommended checklist for drafting solicitors

1. Does the testator wish for organs and/or tissues to be donated following death?
2. Discuss registration of consent with Trillium Gift of Life
3. Discuss the importance of communication with the estate trustee of wishes regarding the organ donation
4. Discuss the importance of communication with family members of wishes regarding organ donation
5. Consider the appointment of a Power of Attorney

Drafting solicitors can also review the Toolkit for Legal Professionals prepared by the Trillium Gift of Life Network, this can be found at: https://www.giftoflife.on.ca/resources/pdf/Legal_Toolkit_Combined_Feb172017_FINAL.pdf

To read the full article by Suzana Popovic-Montag and Ian M. Hull, it can be found at: https://c.ymcdn.com/sites/tlaonline.site-ym.com/resource/resmgr/news_and_publications/Organ_Donation_for_Estate_La.pdf