Sian Keddie and David White discuss opt-out organ donation and how the new legislation regarding organ donation affects your succession planning.

You may have seen recent news reports (or received a flyer through your door!) about changes in Scotland’s law regarding organ donation. From 26 March 2021, new legislation comes into force which means that all Scottish residents who are over 16, have lived in Scotland for 12 months prior to their death and are deemed to have mental capacity will be opted-in to organ donation automatically.

This is a welcome change in the law for many and is designed to save lives. It does so by relieving some of the pressure on the NHS caused by very limited numbers of viable organs available for transplant. This is enacted on the belief that many Scots would be willing to be organ donors but do not take the necessary steps to arrange this.

However, there are various cultural, religious or otherwise personal reasons why you may wish not to have your organs made available for transplant after your death. In these situations, it is vital to make sure your wishes are clear and respected.

Presumed consent for organ donation

Under the new legislation, the presumption of consent only applies where you have not previously opted-out. In this situation, the donation itself will not be automatic and the medical team will instead seek the guidance of your next of kin or Attorney to determine whether you would have wanted your organs donated.

Of course, for loved ones this may be an incredibly difficult decision to make, particularly if they do not know what you would have chosen. Even where they may be confident of their own personal choice, the topic remains a highly sensitive issue and one which many may not feel comfortable making on someone’s behalf. This is likely to compound the upset and distress which grieving loved ones already experience.

Opt-out organ donation

As part of your succession planning, you should consider whether you want to be an organ donor. To opt-out, you can do so online directly with the NHS. Alternatively, you can record your wishes in a written Letter of Wishes which will assist your Attorney, medical team and loved ones in being certain of your decision and understanding your reasoning.

If you would like to know more about how this legislation affects your succession planning or speak to a member of our team about recording your chosen organ donor status, please contact the BTO Personal team.

Sian Keddie

Paralegal at BTO Solicitors LLP | Visit Profile

Sian works as a Paralegal on the Wills, Estates and Succession Planning team, based in the Edinburgh office. She has been working in Private Client since 2018 and joined BTO in 2021.
Read Sian's bio here.

David White

Solicitor at BTO Solicitors LLP | Visit Profile

David is a Solicitor and Notary Public. He joined the firm as a Trainee Solicitor in September 2016 after graduating from Strathclyde University. He spent the majority of his traineeship within the Private Client department and has thus qualified into the department already having dealt with a wide variety of issues.
Read David's bio here.