Organ Donation – changes to the law and what you need to know

Monday, 22 March 2021

You may have seen the Scottish government’s advertising campaign about changes in Scotland’s law regarding organ donation or perhaps you have recently received a leaflet through your door about this.

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.

What has changed

Under this new law, 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(s) to ascertain whether you would have wanted your organs donated. It is therefore extremely important to ensure your loved ones know what your wishes are. Setting out your wishes to your loved ones and/ or your Attorney(s) beforehand will prevent any shocks down the line and should also alleviate any distress or confusion around those decisions at a traumatic time for your loved ones.

As part of your lifetime legal planning, you should consider whether you want to be an organ donor. If you wish to opt-out or you wish to make specific provision regarding organ donation (such as agreeing to donation of some organs or tissue but not others) you can do so online directly with the NHS at:-  

Alternatively, you can record your wishes in a written Letter of Wishes which will assist your loved ones or your Attorney(s) and medical team and loved ones to be certain of your decision.  Given the urgent nature of organ donation it would not be appropriate to record your wishes about this in your Will given the provisions in a Will are usually only disclosed at a later stage.

If you have loved ones whose capacity might be declining, it is also better to have those difficult conversations and help them to express their wishes, now, to avoid any problems about this further down the line.

If you would like to find out more about how this change in the law affects your lifetime legal planning or to speak to someone about recording your chosen organ donor status, please contact one of our Lifetime Legal team on 01383 721141.

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