Legal Briefs: Straight from the heart: Organ donation and personal directives

By Medicine Hat News on August 18, 2018.

In light of recent events, there has been a noted increase in the number of Albertans who are interested in having their organs donated to benefit others.

You likely seen (or have) the small heart symbol on your driver’s license that says “donor” underneath it. This is an acknowledgement the operator has completed the online donor registry at http://www.myhealth.Alberta.ca.

I have registered online and it took less than five minutes to complete. There is a lot of great information on the government website, and it is worth a read.

As a lawyer, I assist people in setting up their estate plan, which includes a will, enduring power of attorney, and personal directive. The personal directive (or PD for short) allows you to name someone who will make medical decisions on your behalf, including the donation of organs and tissues in the situation where you lost mental capacity and were about to die.

I have had clients ask me if they should include an organ donation clause in their PD even if they have completed the online donor registry. My whole-hearted answer is “yes.”

In your PD, you appoint the specific person(s) who will make your health decisions for you (called your agent). People choose their spouse, adult child or children, or close friend to be their agent(s). The agent will provide health related instructions to medical and care staff if you lose the mental capacity to do so whether caused by accident or illness. The agent will provide those instructions based on what they understand you wanted in terms of health or personal care and will follow the directives you specifically set out in your PD.

By registering for organ donation online along with an organ donation clause in your PD, your agent and family can have the peace of mind knowing your decision to donate was considered and affirmed on two occasions.

I note where you have registered online and also have a PD, it is helpful both say the same things to avoid confusion.

The donation of organs and tissues in Alberta is regulated by the Human Tissue and Organ Donations Act of Alberta. The act can be found on the Canlii Alberta website: https://www.canlii.org./ en/ab/.

The harvesting of organs or tissues generally occurs upon the neurological determination of death (NDD). NDD occurs where the individual is brain dead and requires a ventilator in order to maintain breathing. A person is considered legally deceased at that time. NDD typically occurs in a situation where a person is located close to an operating room to facilitate the harvest of organs or tissues.

While the act confirms the ability to donate organs in an NDD scenario, it also refers to live donation. Live donation, while not specifically defined in the legislation, is possible where a PD authorizes the agent to consent to do so.

The ability to provide a live donation is limited by the dead donor rule which says the impact of the organ donation cannot lead to the death of the donor. This likely limits live donation to non-essential organs such as a kidney or a portion of the donor’s liver.

If you have a family history of organ disease involving the kidney or liver, and you are a good/best match for an ailing family member, you should obtain both legal and medical advice on how a clause can be included in your PD to provide a live donation for family members.

Organ donation is very important, and is an example of one of the features your PD can provide. For more information on PDs, consult our website for our articles on PDs or talk to your lawyer.

Les Scholly helps you navigate the turning points of life. He is a partner with Pritchard & Co. Law Firm, LLP and member of the Society of Trust and Estate Practitioners (STEP). Contact Les at 403-527-4411 or at lscholly@pritchardandco.com

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