Want to be an organ donor? While registering with the Australian Organ Donor Register is an important first step, ensure your wishes are crystal clear by also including them in your estate plan, writes Attwood Marshall Lawyers Wills and Estates Special Counsel Hayley Condon.
Donate Life says that of the 89,000 Australians who died in hospital in 2024, only 1,630 people – or around 2 per cent – were eligible to be organ donors. For a transplant to occur, the organs must be functioning well.
Of the 1,630 people, only 527 people became organ donors because 47 per cent of the families of the deceased did not consent to donation.
It is essential that families are aware of their loved ones’ wishes regarding organ donation, as this understanding is critical to increasing consent rates. This is particularly important given that there are currently 1,800 individuals on the transplant waitlist and a further 14,000 people undergoing dialysis who may require a kidney transplant in the future.
Discussing your wishes with family members and documenting them in your estate planning can make a significant difference in fulfilling your final act of kindness.
Often, when this topic is raised by our estate planning lawyers, many clients indicate that they have not previously considered organ donation or believe that their family will already know their wishes.
Others are often unaware that their wishes regarding organ donation can be documented as part of their estate planning, such as in their Enduring Power of Attorney or Advance Health Directive.
The best way to document your organ donation intentions
According to Donate Life, 4 in 5 Australians support organ and tissue donation. Yet, only around 1 in 3 are registered on the Australian Organ Donor Register.
If you hold a strong view in favour of saving lives through organ donation after your death, it is important to ensure that your wishes are clearly documented in writing. This not only helps to prevent potential disputes among family members who may disagree over the decision but also increases the likelihood that your intention to donate organs will be respected and fulfilled.
You may choose to donate any combination of organs, eyes, and/or tissue. A single organ donor has the potential to save up to seven lives, while eye and tissue donation can further enhance or transform the lives of numerous additional recipients.
While medical practitioners must consider certain factors such as age and medical history when faced with a potential donor, no one should assume they are too young, old, or unhealthy to become a donor.
Your wishes regarding organ donation may be included in an Advance Health Directive (Queensland) or Advance Care Directive (New South Wales).
These documents set out your specific preferences and instructions concerning medical treatment and future healthcare, to be followed in the event that you are unable to communicate or make decisions for yourself.
If you do not have an Advance Health Directive or Advance Care Directive, it is recommended that your organ donation preferences be included in an Enduring Power of Attorney (in Queensland) or an Enduring Guardianship appointment (in New South Wales).
These documents authorise a nominated individual to make health-related decisions on your behalf in circumstances where you lack decision-making capacity.
It is not recommended that you record your organ donation wishes in your Will, as organ donation must occur immediately after death, whereas Wills are typically not reviewed until well after this time, making it unlikely that your wishes would be known in time to be acted upon.
When you are admitted to hospital, staff will often check whether you have an Enduring Power of Attorney or Advance Health Directive (Queensland) or an Enduring Guardianship document or Advance Care Directive (New South Wales).
By including your organ donation wishes in these documents, you can ensure that your intentions are discovered quickly, giving you the best chance to make a life-saving difference.
An enduring document is an effective way to relieve your family of the burden of making this difficult decision and to help ensure that your wishes and moral legacy are respected and implemented.
Nevertheless, it is best to cover all bases by:
- Registering your intention to donate organs with the Australian Organ Donor Register (anyone aged 16 and over can register online, and the process takes only 1 minute via the official website or 3 taps in your Medicare app), and
- Including instructions to clinicians and family members as to your wish to donate your organs in an Advanced Health Directive or Enduring Power of Attorney (in Queensland) or an Advance Care Directive or Appointment of Enduring Guardian (New South Wales).
If the deceased has not put their wishes in writing regarding organ donation, but the family is aware that the deceased did not object to donation, there are protocols in place for the attending medical practitioner or designated officer to seek consent from next of kin in accordance with the relevant legislation.
Each state has different procedures on the permission process and who can object.
If the deceased has registered as an organ donor, the designated officer is required to find out whether the deceased had changed their mind regarding organ donation prior to death by making appropriate enquiries of the family members.
Navigating the complexities of organ donation laws and ensuring your wishes are respected can be challenging. This is why it is crucial to have clear, legally binding documents that articulate your intentions.
Attwood Marshall Lawyers – helping you plan for the future and preserve your wishes
Attwood Marshall Lawyers strongly recommends you complete a Will and Power of Attorney documents at the same time. This ensures your loved ones have clear instructions about your intentions, especially during what will be a very emotionally difficult time for them.
As with all essential legal documents, it is imperative to get the right advice to know how the document should be drafted and utilised to protect your best interests.
To discuss your estate planning needs, please don’t hesitate to contact our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071.
You can also book an appointment instantly using our online booking app. Click here.
