Making decisions about our bodies is an important part of estate planning. There are several areas where a person can prepare in advance to provide information regarding their wishes, ultimately allowing for these wishes to be respected. Failure to carry out such future planning can result in the various default legislation coming into effect and may result in an outcome which that individual would not have wanted.
Power of Attorney
You can grant a welfare power of attorney to appoint those who you would like to be responsible for making decisions about your medical care and personal welfare if you are no longer able to yourself. It is therefore important to appoint a welfare attorney who personally knows you and your wishes on these matters (if possible), and who you trust to make decisions on your behalf. A financial element to the power of attorney can also be granted at the same time to either the same or a different person.
Advance directive
An advance directive (sometimes referred to as a "living will") can help to prevent the use of various kinds of life prolonging medical procedures should you suffer an incurable or irreversible illness. It can also make your wishes clear on the use of antibiotics, hydration and artificial nutrition to prolong life, and the use of ventilators or participation in research.
An advance directive provides a simple and useful means of continuing your right to refuse or make decisions about your treatment if you are no longer able to. This potentially removes a huge burden for your loved ones and allows you to communicate how you wish to be treated.
Organ donation
The Human Tissue (Authorisation) (Scotland) Act 2019 was passed by the Scottish Parliament in July 2019 and provides for a 'deemed authorisation' or 'opt out' system of organs and tissue donation for transplantation. The system came into effect on 26 March 2021.
The opt out system applies to most adults aged 16 and over who are resident in Scotland. If you die in circumstances where you could become a donor and have not recorded a donation decision, it may be assumed you are willing to donate your organs and tissue for transplantation, unless you are in one of the following excluded categories; Adults without capacity to understand the deemed authorisation law, Adults who have lived in Scotland for less than 12 months before their death, or Children under the age of 16.
Your family will always be asked about your latest views on donation, to ensure it would not proceed if this was against your wishes, however you can record your donation decision by registering either an opt-in or opt-out decision on the NHS Organ Donation Register. Alternatively, you can declare your wishes as part of your estate planning with your solicitor by making a letter of wishes to accompany your will.
Funeral instructions
Funeral instructions can be incorporated into the terms of your will to provide direct guidance to your relatives as to what you would like to happen to your body on death and nominate a particular individual responsible for implementing these wishes.
Where a person dies without nominating someone to be responsible for making their funeral arrangements the Burial and Cremation (Scotland) Act 2016 provides a fixed list in order of priority for this task. If it cannot be agreed who will be responsible for making a person's funeral arrangements, this list will determine who has the right to do so. It is therefore best to record your funeral instructions in your will to avoid any uncertainty.
Donation to medical science
Although it is well known that you can donate your body to medical science, the logistics of doing so are not. Most academic or research institutions require steps to be taken by a person during their lifetime, such as registration and completion of consent forms, to enable them to accept the donation of their body to medical science following their death. Failure to complete these lifetime steps can result in the institution rejecting the donation.
Whatever you decide in respect of your body, you should review your wishes (and any associated verbal or written instructions) regularly to ensure that they continue to be accurate. A solicitor will be able to advise you on the best way to record your wishes and help to prepare and update any documents you may require.
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