Many people believe that a Power of Attorney for Personal Care is the proper tool in which to express their intention to donate organs. Is this correct? If so, does this mean that an attorney for personal care may be granted the authority to make decisions regarding the grantor’s organ donation?
In Canada, organ donation is an “opt-in” regime, and in Ontario, it is governed by the Trillium Gift of Life Network Act. The organization that facilitates organ donation consent in Ontario is the Trillium Gift of Life Network.
First-person consent for inter-vivos organ donation requires consent in writing by a person who is at least sixteen years of age and mentally competent (TGLNA, s. 3(1)). Consent for post-mortem organ donation may be given either in writing or, orally in the presence of two witnesses during the person’s last illness (TGLNA, s. 4(1)(a) and (b)).
Should organ donations be dealt with in a power of attorney for personal care? POAPCs are dealt with in the SDA. The SDA provides authority to a SDM under a POAPC to make decisions on behalf of the grantor concerning personal care, health care, nutrition, shelter, clothing, hygiene or safety, keeping in mind the best interest of the grantor, while he or she is incapable. Whatever the nature of the decision, it must be within the rubric of enhancing or sustaining the health and life of the grantor. Making a post-mortem organ donation in no way fits within this mandate, and in fact section 66(14) states an SMD does not have authority to make decisions for a grantor regarding organ donation.
The raison d’etre of a POAPC is to authorize substitution of the decision maker, to replace the first-person decision maker with a third party decision maker. The authority for such delegation of decision-making as expressed in the instrument itself is rooted in the SDA. Since neither the SDA nor the TGLNA contemplate a grantor’s delegation of decision making to consent to organ donation, the use of a POAPC under the SDA with respect to organ donation is an inappropriate use of a POAPC. However, if part of a POAPC, among other things, states the first-person’s consent to organ donation after death, it is “a writing” which constitutes written consent to donate. Clearly, in the latter example, the document is used as a vehicle to record consent and not as a POAPC. That an attorney is named in that POAPC is irrelevant. Hence, when advocating the use of a POAPC regarding post-mortem organ donation, it is important to clarify that such instructions are enforceable (barring family objection) not because a POAPC is used as the vehicle, but rather, because the instructions are first person written consent, in compliance with the TGLNA.
The rationale for providing written instructions to donate organs after death in a POAPC is that this document is likely to be examined by hospital staff and family prior to death while the same instructions provided for in a Will may not be read until after burial of the deceased, thus frustrating the donor’s intentions.
However, to achieve the proper timing does not require the use of a POAPC. It is possible to achieve the same results by advising clients who are executing a POAPC and have expressed a wish to donate organs after death, to provide written instructions to that effect, perhaps attached as a memorandum to the POAPC and referred to in the POAPC. This approach may reduce misunderstanding by the client, his or her family and the public at large, with respect to the role of the POAPC regarding the intended organ donation. Separating the contents of the documents demonstrates their independent legal status, while the physical attachment (by a paper clip, for example) achieves the timing goal.
In the context of post-mortem organ donation the provisions of the SDA are inapplicable. The sole statute governing consent to post-mortem organ donations is the TGLNA, which, while providing for consent by third party family members in the absence of first party consent, does not contemplate consent by an attorney pursuant to a POAPC. Furthermore, notwithstanding binding written consent by the potential donor, hospitals do not carry out those wishes if there is objection from the family.
Estate lawyers’ role in advising clients on these matters is limited. When clients raise questions regarding the use of a POAPC for purposes of organ donation after death, the lawyer’s advice should reflect the distinction between delegation of decision-making authority in a POAPC, and written consent provided in writing under the TGLNA. In the context of organ donation, the former cannot be done. With respect to the unsettled state of affairs given the legislative context and public policy considerations, at best, the lawyer may, by encouraging the client to convey his or her wishes to close family members, increase the likelihood that the client’s wishes will be honoured after death.
Until next time,