Recording a choice for people who cannot give legal consent themselves (mentally incompetent)

Some people cannot make their own choices regarding donating organs and tissues. For instance:

  • someone with dementia
  • someone who is mentally  incompetent

These people do not understand what organ and tissue donation means. They also don't understand what happens when they make a choice. We call these people mentally incompetent. They are therefore not allowed to record a choice in the register themselves.

Everyone from the age of 18 will eventually be recorded in the register, including people who are unable to give legal consent themselves. A legal representative of someone who is mentally incompetent can record a choice on behalf of this person.

Legal representative

A legal representative is a person who is legally authorized to make choices for people who are mentally incompetent. Examples of a legal representative are:

  • A curator or mentor appointed by a judge.
  • A partner or other family member designated by the court.
  • Someone appointed on paper by the mentally incompetent  person.

How does a mentally incompetent person enter the register?

A legal representative can record a choice for a mentallyincompetent person. This can be done with DigiD Authorization (DigiD machtigen in Dutch) or via the paper form. In both cases, the legal representative signs the form on behalf of someone else. The same choices apply to an mentally incompetent person as to other people.

If the legal representative has not recorded a choice, then 'no objection to organ donation' is indicated next to the name of the mentally incompetent person. This registration is not valid. In this way the position of mentally incompetent persons is protected. In the event of death, the physician discusses with the partner, family or legal representative* whether or not the person will become a donor.

What happens around the time of death?

Around the time of death, the physician reviews a person's choice. The physician must then find out whether this person was  mentally competent at the time of registration and whether the registration is legally valid. The physician does this in two ways:

  • through a conversation with the partner, family or legal representative,
  • and by viewing the person's medical records.

In this way we protect the vulnerability of mentally incompetent  persons.

If the mentally incompetent  person is registered as an organ donor, the partner, family or legal representative* must confirm the choice.

If 'no objection to organ donation' is stated for the mentally incapacitated person, the registration is not valid. The physician discusses with the partner, family or legal representative* whether or not the person will become a donor.

*The role of the legal representative expires upon the death of the incapacitated person. The legal representative is only involved in the discussions if the incapacitated person has not died yet.