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Individual rights & freedoms

Donating organs: Who decides


You can choose to record whether or not you would like your organs to be donated (if possible).

The Human Tissue Act 2008 sets up a decision-making framework for organ donation.

The starting point is to check if you had made an informed decision before you died. If not, or if there’s any doubt, your immediate family will usually get a chance to consent or object to organ donation.

Note: The person you’ve appointed as power of attorney no longer has the ability to make decisions on your behalf once you die. Decisions to be made after you die (such as burial or cremation, and funeral arrangements) will mostly be made by the executor you name in your will (or the administrator, if you don’t have a will). However, when it comes to deciding whether your organs can be donated, the executor/administrator can help facilitate this decision, but doesn’t make the decision themselves.

Summary of the decision-making hierarchy

Human Tissue Act 2008, s 31

The Human Tissue Act sets up a hierarchy of people who can give legally valid consent, or make a legally valid objection, about organ donation. When you die:

  • first, the doctors will need to find out if you consented or objected to organ donation before you died
  • if not, and if you haven’t appointed someone to decide for you after your death, then your immediate family decides together
  • if there’s not a decision from your immediate family, then any close relative can decide – but their consent can also be overridden by another close relative.

Although your consent/objection is technically at the top of this hierarchy, in practice things are different. The Human Tissue Act lets the doctors decide not to act on your consent, and doctors can use that freedom to choose not to go ahead with organ donation if your family object or are distressed about it.

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Decision making and powers of attorney

Where to go for more support

Community Law

Your local Community Law Centre can provide you with free initial legal advice.

Find your local Community Law Centre online: www.communitylaw.org.nz/our-law-centres

Ministry of Justice

The Ministry of Justice has information about the Protection of Personal and Property Rights Act 1988.

Website: www.justice.govt.nz/family/powers-to-make-decisions

Office for Senior Citizens

The Office for Senior Citizens website has useful information and templates for preparing an enduring power of attorney.

Website: www.superseniors.msd.govt.nz/finance-planning/enduring-power-of-attorney

New Zealand Law Society

The Law Society has helpful information on Powers of Attorney.

Website: www.lawsociety.org.nz/for-the-public/common-legal-issues/powers-of-attorney

Public Trust

The Public Trust is a provider of wills and estate administration services. The Public Trust’s website has helpful information about enduring powers of attorney.

Website:  www.publictrust.co.nz/products-and-services/enduring-power-of-attorney
Phone:  0800 371 471

Welfare Guardian Trusts

The Welfare Guardians Trusts’ website provides information about welfare guardians and links to some local Welfare Guardian Trusts.

Website: www.welfareguardians.nz

People First

People First New Zealand is a self-advocacy organisation that is led and directed by people with learning disabilities. They create Easy Read resources which are available free to download on their website.

Website: www.peoplefirst.org.nz/news-and-resources/easy-read-resources
Email: ask@peoplefirst.org.nz
Phone: 0800 20 60 70

Organ donation

Organ Donation New Zealand has information about organ and tissue donation.

Website: www.donor.co.nz

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