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Burial and cremation

Donating organs: Who decides

The Human Tissue Act 2008 first looks to whether the deceased had made an informed decision before they died, but allows the deceased’s immediate family to give consent to – or object to – organ donation if they hadn’t made any decision.

The executor/administrator makes decisions about burial or cremation. However, when it comes to deciding whether a deceased’s organs can be donated, the executor/administrator can help facilitate this decision, but doesn’t make the decision themselves.

For more information about organ donation, and how to record whether you want your organs to be donated, see: “Donating your organs”.

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:

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

Although the deceased is formally at the top of this hierarchy, in practice things are different. The Human Tissue Act lets the doctors decide not to act on consent given by the deceased, and doctors usually use that freedom to choose not to go ahead with organ donation if the family oppose or are distressed about it.

Note: Unlike some other countries, New Zealand doesn’t have a national register for recording people’s consent to being an organ donor. Driver’s licence information is the closest thing we have to a register. But having “Donor” (or choosing not to be recorded as a donor) on a driver’s licence, doesn’t count as giving informed consent (or an informed objection) to organ donation – this is just used as an indication for medical staff. From there, the staff will ask the immediate family about whether the deceased had clearly given or refused consent.

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A death in the family

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

Confirmation of the cause of death – Coroners

The website of Coronial Services of New Zealand has information about the role of coroners in investigating the causes of deaths.

Website: coronialservices.justice.govt.nz

Registering a death

The Births, Deaths and Marriages section of the Department of Internal Affairs has information on what to do when someone passes, including registering a death.

Website: www.govt.nz/browse/family-and-whanau/death-and-bereavement

Burial and cremation

See your local council website for information about burial and cremation in your area.

Gathering kaimoana for tangihanga

The Ministry for Primary Industries has information on its website about Māori customary rights for gathering kaimoana for tangihanga, hui and other traditional purposes.

Website: www.mpi.govt.nz/fishing-aquaculture/maori-customary-fishing

Financial support for bereaved families

Work and Income’s website has information about possible financial support for funerals and tangihanga.

Website: www.workandincome.govt.nz/eligibility/urgent-costs/bereavement.html
Phone: 0800 559 009

ACC’s website has information about different types of accident compensation and payments that can be made to family members when a person has died in an accident.

Website: www.acc.co.nz/im-injured/financial-support/financial-support-after-death
Phone: 0800 101 996

Organ Donation New Zealand

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

Website: www.donor.co.nz

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