Making decisions about our bodies is a critical component of estate planning. There are various areas where a person can prepare in advance to present information about their preferences, allowing their requests to be honoured in the end. Failure to carry out such future planning can result in various default legislation taking effect, which may result in an outcome that the individual would not have desired.

Power of Attorney

You can appoint persons you want to be accountable for making choices about your medical care and personal welfare if you are no longer able to do it yourself by granting a power of attorney. As a result, it is critical to designate a welfare lawyer who is familiar with you and your interests in these situations (if possible) and a person or persons whom you trust to make decisions on your behalf. A financial component to the power of attorney can also be provided concurrently to the same or a separate individual.

Advance directive

If you have an incurable or irreversible condition, an advance directive (sometimes known as a “living will“) can help to prevent the use of several types of life-prolonging medical operations. It can also express your preferences for the use of antibiotics, resuscitation, and supplemental nutrition to prolong life, as well as the use of ventilators or participation in research.

An Advance Directive is a straightforward and effective way to maintain your right to refuse or make decisions about your treatment if you are no longer able to do so. This potentially relieves a significant strain on your loved ones and allows you to express how you want to be overseen.

Organ donation opt in update

The Scottish Parliament approved the Human Tissue (Authorisation) (Scotland) Act 2019 in July 2019, which provides for a ‘deemed authorisation’ or ‘opt out’ system of organ and tissue donation for transplantation. The system went into operation on March 26, 2021.

The opt-out method applies to the vast majority of adults in Scotland aged 16 and up. If you die in circumstances where you could be a donor and have not recorded a donation decision, it may be assumed that you are willing to donate your organs and tissue for transplantation, unless you are in one of the following excluded categories: Adults without the 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 questioned about your most recent views on donation to ensure that it does not act against your wishes; however, you can record your donation decision by registering an opt-in or opt-out decision on the NHS Organ Donation Register. Alternatively, you can declare your wishes to your solicitor as part of your estate planning by writing a letter of wishes to accompany your will.

Funeral planning and instructions

Funeral instructions can be inserted into the provisions of your Will to provide direct guidance to your relatives as to what you want to happen to your remains after death and to name a specific individual responsible for carrying out these desires.

If a person dies without naming someone to be in charge of making funeral arrangements, the Burial and Cremation (Scotland) Act 2016 gives a predefined list in order of priority. If it cannot be determined who will be responsible for arranging funeral preparations for a deceased person, this list will decide who has the authority to do so. To minimise any doubt, it is best to include your funeral wishes in your will.

Medical science body donation

Although the fact that you can donate your body to medical science is commonly known, the particulars of doing so are not. Most academic or research institutes require a person to take actions during their lifetime, such as registration and the completion of consent documents, in order to accept the donation of their body to medical science after they die. Failure to fulfil these lifecycle stages may result in the donation being rejected by the institution.

Whatever you decide about your body, you should revisit your preferences (and any accompanying verbal or written instructions) on a frequent basis to ensure that they remain true. A solicitor can advise you on the best manner to record your desires and assist you in drafting and updating any documents you may require.