Presumed Consent – for your organs – but what about your assets?

By October 2, 2019 News & Articles
Presumed Consent - will you opt in or opt out?

A new law, recently passed by the Scottish Parliament means that when someone dies, there will be presumed consent – a presumption that their organs will be available for donation, unless the deceased has registered to opt out of automatic donation. The Act received the Royal Assent on 18th July 2019 and will come into force in Autumn 2020. You can read it in full here.

This is a fundamental change in the law. At present, should someone die, unless they have opted in to donate their organs, the consent of the next of kin is necessary before any organs can be removed for transplant. When the new law comes into force, unless a person registers to opt out from organ donation, there will be an assumption that when a person dies, his or her organs can be donated for transplant. If a person decides to opt out of the donation process, he or she must register that decision and that will mean their organs will not be available for donation.

When we first heard about this new Act, we reflected on how this now mirrors the current Succession (Scotland) Act. In the Succession (Scotland) Act, there is presumed consent that your assets will be divided as decided upon by the state.

How do you opt out of the Succession (Scotland) Act?

Opting out of that Act is fairly straight forward – all you need to do is to make your Will.  Your estate will be divided up in accordance with the law of Succession unless you make your Will. That might not always be what you’d like to happen.

This can be particularly stressful for those you leave behind. In some more extreme cases, the law can seem very cruel. One clear example is if you live with your partner and are not married. Should you die without making your Will, your partner has no automatic entitlement to any part of your estate. In fact, should your partner wish to share in your estate, he or she will need to raise court proceedings and have a judge award him or her a share – and it’s not always certain that that will happen.

So, just like organ donation, the law will automatically apply unless you take action to make your own preferred arrangements.

Please remember, the law doesn’t always work in the way you think it might. When it comes to making sure your loved ones are looked after properly after your death, you must “opt out”. When you make your Will you can leave your assets to those you wish to receive them.

If you would like further information or wish to make your Will, please contact us without delay.