Registering the choice of persons unable to give legal consent

Some people are unable to give their legal consent regarding the donation of their organs and tissues. For example:

  • people with dementia

  • people with a mental handicap

These people cannot fully understand what donating their organs and tissues involves. Neither can they understand what will happen after they make a decision. They are therefore not allowed to enter a choice in the register.

From 1 July 2020, however, these people will be included in the register if they are aged over 18. Their legal guardian or representative will enter a choice on their behalf.

Legal representative

A legal representative is a person who is legally authorized to make decisions on behalf of someone who is unable to do this for himself/herself. Examples of a legal representative are:

  • A trustee or mentor who has been named by a judge or magistrate.

  • A partner or other family member who has been named by a judge or magistrate.

  • Someone who has been designated by the person in writing.

How to register a person who is unable to give their legal consent in the Donor Register?

A legal representative may enter a choice in the register on their behalf. This can be done using DigiD Authorization or using a printed form. In both cases, the legal representative signs the form on behalf of the other person. People who are unable to give their legal consent have exactly the same options as other people. 

If their legal representative does not enter a choice, ‘No objection to organ donation’ will be added as that person’s choice in the register. But this means that the registration is not valid. This is in order to protect the position of people who are unable to give their legal consent. In the event of that person’s death, the doctor will speak to the person’s partner, family or legal representative* about whether or not the person should become a donor. 

What happens when somebody dies?

After the death, the doctor will check the deceased person’s choice in the register. The doctor must then decide whether that person was legally able to make that decision at the time it was added to the register, and whether the registration is legally valid. The doctor does this in two ways:

  • by speaking to the deceased person’s partner, family or legal representative
  • and by looking at the deceased person's medical records

This is in order to protect vulnerable people.

If the person who is unable to give their legal consent is registered as an organ donor, the partner, family or legal representative* must confirm this choice.

If the register states 'No objection to organ donation', the registration is not valid. The doctor will speak to the deceased person’s partner, family or legal representative* about whether or not that person should become a donor.

*The role of the legal representative ends when a person who is unable to give their legal consent dies. The legal representative is only involved in the meeting with the doctor when the person is still alive.