New law aimed at relieving funeral stress

By Lee Dryden
The Daily Record Newswire

DETROIT - Practitioners say a new Michigan law that took effect this summer will help head off disputes and give clients peace of mind that their wishes will be honored after death.

Public Act 57, which was effective June 27, allows for the appointment of a funeral representative, who will have the authority to make funeral arrangements, including disposition of the body. It doesn't have to be a relative.

Before the new statute, the law only permitted a spouse, children or close relatives to make such decisions. No one could be specified among that group, nor could anyone else assume that role.

It's a recipe for family strife at a stressful time.

The funeral representative will have the "right and power to make decisions about funeral arrangements and the handling, disposition, or disinterment of a decedent's body, including decisions about cremation and the right to retrieve from the funeral establishment and possess cremated remains immediately after cremation."

The law sets a pecking order in which the funeral representative is only surpassed by a person designated to direct the disposition of a service member's remains. After the funeral representative, a surviving spouse in next in line to make decisions, followed - in order - by the decedent's children, grandchildren, parents, grandparents and siblings. All must be older than 18.

Now, it's a matter of attorneys raising awareness among their clients of their new options.

The general public is likely unaware of the newly minted law so attorneys need to spread the word about the flexibility it provides, said Mi-Hae Kim, an associate at Warner Norcross & Judd LLP in Grand Rapids.

"It is our duty as estate planning attorneys to inform our clients of this new change in law," she said. "The change is especially important for those clients who may have a longtime partner but are unmarried, who die without leaving behind any family, who have family members who do not live close by or whose family may have internal tensions where disagreement among family members is a possibility.

"It is also important to those who have strong feelings about post-death decisions for religious, cultural or emotional reasons and believe that surviving family members are unlikely to follow these directions. It is essential to make clients aware that a funeral representative designation provides a way by which they can designate an individual to make these important decisions and to avoid any ambiguity or tension for their loved ones upon their passing."

Kim said the previous restrictions "created a problem if you wanted to name a close friend, partner or pastor to carry out your final wishes."

Adam Zuwerink of West Michigan Law PC in Muskegon said the new law will be helpful in situations where an older client's children live elsewhere, but there is a close friend or relative nearby.

"Our clients can now name someone who is in a better position to help make sure post-death body decisions are taken care of quickly," he said, agreeing that the law is likely not yet well known among the public. "I see it as another preplanning tool clients can use to make their wishes known, in order to avoid future conflicts among their loved ones."

In a section about funeral representatives on Zuwerink's website, he wrote that the priority order set by the law is a "much more specific list than the previous law, and gives greater clarity to a funeral home regarding who has legal priority to make decisions."

"The new law also makes clear that if a person with the highest priority cannot be found, elects not to serve as the funeral representative, or fails to perform any duties within 48 hours of your death, the person(s) with the next highest priority has the right to act."

The law resulted from Senate Bill 551, sponsored by Sen. Tonya Schuitmaker, R-Lawton, and signed by Gov. Rick Snyder in March after unanimous approval from lawmakers.

A bill analysis by the Senate Fiscal Agency stated the designation of a funeral representative can assist hospital and hospice employees when someone dies.

"Locating the next of kin can involve considerable time and effort if the family was not involved with the decedent's medical care, especially if the person was unmarried and did not have children," the analysis stated. "That task can be complicated by a number of factors, including older adults outliving their next of kin, family relationship breakdowns, divorce, geographical separation of family members, unmarried couples, and relatives' emotional or cognitive inability to assume the responsibility of deciding how to proceed.

"The bill would allow a person to avoid those challenges by designating a trusted person to make funeral arrangements and final disposition choices. In turn, that would assist medical institutions in identifying who could legally make the person's postdeath decisions."

Kim said the law allows the appointment of a funeral representative to be made through a will or patient advocate designation, but a separate document may be best.

"Your funeral representative may have a more difficult time getting access to your will," she said. "Furthermore, while the Act states that a funeral representative designation made in a will is valid even if the will is not probated, the funeral representative designation is designed to be provided to funeral homes or crematories as authority for the funeral representative to act.

"Designations made in a will means the entire will needs to be provided to those establishments. A standalone document provides easier access and contains only those provisions necessary for those establishments to determine a funeral representative's authority under the document."

She said it is "important that an attorney be involved in the process to ensure that the requirements of making the designation are properly followed."

"Furthermore, it is important to guide and discuss with clients the peripheral questions to consider when choosing any fiduciary," Kim added.

Zuwerink wrote, "The funeral representative designation can be done as a simple stand-alone document even if you do not have a will or powers of attorney, and has the potential to relieve a lot of uncertainty after your passing."

He agreed that a funeral representative should be named in a separate document rather than a will.

"The funeral representative designation is a document designed to be reviewed by a funeral home or crematory, and there is no need for your entire will to be made public and reviewed by those establishments," Zuwerink wrote.

Despite the positives, Kim said the new law is "unclear on whether a funeral representative is required to follow your wishes concerning funeral arrangements as stated in the designating instrument."

"While a funeral representative is included in the definition of a 'fiduciary,' which indicates that there is a duty to follow the decedent's known wishes, there is some question as to whether a duty can be owed to a person who has died. Further clarification on this point may be needed."

Zuwerink offered a warning on his website related to funeral costs.

"I can see a situation where a person declines serving as a funeral representative due to a fear he or she will be stuck with the funeral bill, so it is important to have a conversation with your funeral representative on how your wishes will be paid for after your death," he wrote.

Published: Tue, Aug 23, 2016