Last week, we discussed the importance of planning for your funeral and making sure your final wishes are known. Even when you do write everything down, who is going to be in charge of the funeral?
For example, let’s say that Mom has died. Dad cannot agree on the funeral arrangements with the kids. Neither Dad nor the kids agree with the prepaid funeral plan that Mom has set up. If the family cannot agree, then to whom does the funeral home listen?
Michigan law is fairly clear. The Michigan Estates and Protected Individuals Code specifically states who is in charge of funeral arrangements and disposition of your remains. Upon your death, the first person with priority over these matters is your closest heir(s)-at-law. This is determined using the same manner that determines who gets your property or “stuff” if you died without a will.
The first person with priority is your surviving spouse. If you have no surviving spouse or your surviving spouse does not act, then each of your surviving adult children has an equal say. Your children control by majority rule. When there is no majority consensus of the adult children, then one of them must file a petition with the probate court to cause a decision to be made.
In the instance that you have no children or they do not act, then the decision falls to your descendants by generation. Without a surviving spouse or descendants acting, then your decision makers are your parents. More than likely your parents are not around or do not act, in which case your siblings are in charge. After that, your siblings’ descendants, until someone acts.
Your named personal representative of your will would then be able to make these decisions if none of your heirs stepped up to the plate to handle the arrangements. If you had a guardian before your death, then your guardian would be next in line to be in charge A special personal representative could be appointed to make those decisions if you had no will or guardian. Without heirs, personal representative or guardian, the decision next falls to the county public administrator or medical examiner.
It would not be uncommon for the person you appointed power of attorney to come to the funeral home and attempt to make your funeral arrangements. However, your powers of attorney expire upon your death. Your power of attorney agent has no authority to make any funeral or body disposition decisions with the exception of your anatomical gift or organ donation wishes.
When someone with priority does not act, before the next level of priority can make any decisions, one of your family members or your named personal representative must make a good faith effort to contact the non-acting person. There is no requirement under the statute that the person needs to be informed of their rights or responsibilities regarding your funeral and disposition of your body. Arguably, as long as that person has been informed of the death and does not act, the next level of priority can act.
The Michigan Funeral Directors Association has advised its members when contacting these priority persons to inform them that they have the right to make decisions about the funeral and remains and if they are not going to act then to sign a written waiver. Although this is not required by the statute, it can give clear guidance to the funeral home and minimizes the funeral home’s liability with regard to following the wishes of the legal representative.
What if you do not want these designated persons making these decisions? Unfortunately, under current Michigan statute, if you want someone else other than whom the law states, you cannot, with the exception of an organ donation or anatomical gift. You can designate a representative to make sure that the organ donation or anatomical gift happens. That person has no authority over your funeral or the rest of your remains, only the organ donation or anatomical gift.
Your wishes regarding your funeral and the disposition of your remains, other than your organ donation or anatomical gift, are generally only a guide to your decision makers, and are not legally binding upon them In the case of your anatomical gift or organ donation, your agent appointment and your wishes generally do prevail and are legally binding.
The way the law is written, the persons making these decisions regarding your funeral and disposition of your remains do not have to follow the instructions that you left and maybe for which you have already paid. They can do what they want to do, not necessarily what you want them to do.
So is there any way to make sure your wishes are going to be followed? To increase the likelihood that your wishes are going to be followed, get them down on paper. If you have any specific requests, document them. As we discussed last week, one of the best ways to document your funeral wishes is to purchase a prepaid funeral contract. With a prepaid funeral contract, you can list the type of funeral service and burial you want and whether or not there are going to be visitations.
Buy your burial plot or niche and monument ahead of time. Many of our clients have their monuments installed on their burial plot or niche while they are still living, leaving only the date of death blank. After death, the monument company only needs to add the year of death to the monument.
With regard to the funeral service itself, I’ve had clients who have written out their entire service, detailing the readings, readers, number of verses of which songs and even designating the vocal soloist and the songs to be sung by him or her. When you do this, although not legally binding, most often the family feels they have a moral obligation to follow your wishes.
Not only make sure that your instructions are put down in writing, talk them over with your loved ones so that everybody is on the same page and in agreement before your death. So when the time comes, there would be no disagreement or fighting over what should be done.
By: Matthew Wallace CPA, JD
Published edited April 20, 2014 in The Times Herald newspaper, Port Huron, Michigan as: Who’s in charge of the funeral?