By Marlaine C. Teahan
Who controls the disposition of a person’s body or the final resting place of an individual, or decedent, after his or her death?
Old Law
Generally speaking, Michigan law has provided that the next of kin, in a certain order of priority, had authority to make decisions regarding a decedent’s funeral arrangements and the handling, disposition, cremation, right to possess the cremains, and disinterment of a decedent’s body. The presumption that the next of kin had this decision-making authority often created disputes between those closest to the decedent and the next of kin (who may have been estranged from the decedent or were very distantly related). Until now in Michigan, without creative will or trust provisions that would disinherit uncooperative next of kin not following a decedent’s wishes on burial or cremation, an individual could not direct how their body would be disposed of after death. This was true even though a person could designate another to make medical decisions for him or her during life. This dichotomy between a person’s ability to made decisions for themselves during life but not after death has frustrated many individuals and many estate planners. Similarly, the struggle at death over the control of a person’s body between close friends and relatives often involved funeral homes in heated disputes and difficult situations with bodies that could not be buried in a timely fashion.
New Law
Effective June 27th, 2016, individuals can name a funeral representative who will have the right and power to make decisions about funeral arrangements and the handling, disposition, or disinterment of a decedent’s body. This power includes the right to decide about cremation, and the right to retrieve from the funeral establishment and possess cremated remains of the deceased immediately after cremation.
How to designate
A funeral representative designation may be included in an individual’s will, patient advocate designation, or other writing. Given conflicting signing formalities and the conflicting effective dates of various powers granted in these documents, many attorneys will prepare separate, standalone funeral representative designations for their clients. It is helpful that to be valid, funeral representative designations in a will will not require the will to be admitted to probate. What are the requirements?
To be effective, funeral representative designations must be:
• In writing;
• Dated;
• Signed by an individual (called a declarant) who is: 18 or older; of sound mind; voluntarily signing or who directs a notary public to sign for him or her under section 33 of the Michigan notary public act; and not under duress, fraud, or undue influence;
• Signed in the presence of 2 witnesses; or before a notary public;
• Those signing as witnesses must attest that the individual signing: Is 18 or older; appears to be of sound mind; and under no duress, fraud, or undue influence.
Witnesses cannot be: the funeral representative; a health professional, employee of or volunteer at a health facility or veterans facility who provided medical treatment or nursing care to the declarant during the final illness or right before death; a partner, member, shareholder, owner, or representative of the health facility where medical treatment or nursing care was provided; or an officer, partner, member, shareholder, owner, representative, or employee of a cemetery where the declarant’s body will be interred, entombed, inurned, or of or a crematory where cremation services will be given.
The law contains many other important provisions such as:
• Powers of a funeral representative can only be exercised after the death of the declarant;
• One or more successor funeral representatives may be designated;
• A funeral representative may not delegate his or her power to another individual, unless the written designation so authorizes;
• Certain individuals may not act as funeral representatives, such as one who feloniously and intentionally kills, or is convicted of committing abuse, neglect or exploitation of the decedent;
• How a funeral representative designation can be revoked; and
• Who has priority to exercise the powers of a funeral representative in the absence of a designation.
This legislation will be helpful for those who want someone other than their next of kin to make decisions on burial, cremation, and a final resting place. Often, individuals are closer to friends than to family, or certain family members are better decision-makers in times of crisis than other family members, making them a better funeral representative choice. This law finally allows an individual the right to choose who will make decisions about his or her funeral, cremation and burial. Resolution of the competing interests between an individual’s desire for self-determination at end of life and the funeral industry’s desire to control the process (for many reasons) has taken quite some time. The new funeral representative designation law appears to be a good compromise that satisfies many conflicting interests. It will be interesting to see how effective the law is in accommodating an individual’s exercise of autonomy and the funeral industry’s need for effective and quick decision-making. So too, it will be interesting to observe whether this law results in unintended consequences that might require additional, corrective legislation.
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Marlaine C. Teahan is an attorney and shareholder with Fraser Trebilcock. Teahan has 30 years of experience and devotes her practice to the needs of individuals and families in the planning and administration of trusts and estates. For additional information on how to designate a funeral representative, email Teahan at mteahan@fraserlawfirm.com or call 517-377-0869.
