You Now Can Designate Who’s In Charge of Your Funeral
Monday, June 27, 2016 is a new day for you and the other residents of the state of Michigan. Starting tomorrow, for the first time in our state’s history, you can designate an individual to make decisions about your funeral arrangements and the handling, disposition, or disinterment of your body, including decisions about cremation, and the right to possess your cremated remains.
Prior to the Funeral Representative Act of 2016, you had no choice nor control of your funeral or who could make those decisions, even if you had a pre-paid funeral. The folks in Lansing had determined that for you. Your closest heir(s)-at-law were in charge, regardless of what your wishes were. You just hoped and prayed your wishes were followed.
Under the old law, the first person with priority was your surviving spouse, and then your surviving adult children. If no surviving spouse or children acted, then the decision fell to your descendants by generation. After that, then it was your parents, then siblings and then your siblings’ descendants, until someone acted.
Your named personal representative of your will would only have been able to make these decisions if none of your heirs stepped up to the plate to handle the arrangements. This has caused concern over the years if you did not want your heirs making those decisions, such as if you wanted a long-term unmarried partner to make those decisions, or you had no kids and you did not want your siblings or their descendants handling your funeral.
Under the new act, you can choose anyone you want to make these decisions, so long as they are over the age of eighteen and of sound mind. In addition, your designated funeral representative cannot be associated with either the health care facility providing services to you just prior to your death, or the funereal home or crematory providing services after your death.
The only individual who has priority over your designated funeral representative is if you were a service member at the time of your death. In that situation, the person designated by US law is the decision maker.
If you have not designated a funeral representative, as under the old law, the first person with priority to make your funeral decisions is your surviving spouse, and then the majority of your surviving adult children. If no surviving spouse or adult children act, then the decision falls to the majority of your grandchildren. After that, then it is the majority of your parents, then grandparents and then your siblings.
If there is still no one acting, then the first of your parents’ descendants to contact the funeral home to make those decisions is the winner and can act and make all of your funeral decisions. If no descendant of your parents steps up to the plate, the decision falls to the first descendant of your grandparents who contacts the funeral home to make the arrangements.
And after that, if none of your loved(?) ones act, the decision falls to your personal representative named in your will, then to your guardian you had during your lifetime, if any. Still no one acting, then a special fiduciary or special personal representative could be appointed by the court, or if none, then the county medical examiner.
Your funeral representative designation must be in writing, dated and signed by you or by a notary public on your behalf in the presence of two witnesses or a notary public, who also sign. Although not required by the new act, I recommend you have two witnesses and a notary public.
I also recommend that you designate at least two successor funeral personal representatives. We’ve had numerous instances over the years with our clients whose first and/or second designated financial power of attorney agent or patient advocate did not act because of death, mental disability, moved away, refused to act, etc. With adequate backups, you can be assured there will be someone to make those decisions.
Your designated funeral representative accepts the designation as funeral representative by signing an acceptance of funeral representative, or by acting as the funeral representative. If you are named as funeral representative by a loved one, make sure there is either a prepaid funeral or there are enough funds to pay for the funeral. If not, you are personally on the hook for the funeral and burial expenses.
Your designation of funeral representative is not permanent unless and until your mental disability or your death. Until that time, you can revoke a designation of funeral representative by a written revocation or by a subsequent inconsistent designation. Your designation of funeral representative is also revoked by your representative’s resignation, failure to be found or failure to act within 48 hours after being notified of your death.
Your estate planning attorney should be able to draft your designation of funeral representative. Or if your chosen funeral home is a member of the Michigan Funeral Directors Association, they should be able to provide a form for you to complete.
As under the old law, 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 funeral representative, 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 still written though, your funeral representative does 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?
Firstly, choose your funeral representative wisely. Talk to them and make sure they are on board with your wishes. Next, to increase the likelihood that your wishes are going to be followed, put them down on paper. If you have any specific requests, document them. 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 and burial services 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 funeral or memorial 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 and hopefully your funeral representative feel they have a moral obligation to follow your wishes.
With proper planning and the designation of a funeral representative, you can increase the likelihood that your final wishes will be followed.
Matthew M. Wallace is an attorney and CPA with the Wallace Law Firm, PC in Port Huron and can be reached at 810-985-4320, matt@happylaw.com or www.happylaw.com.
The ideas presented herein are for discussion and educational purposes only and not intended to be relied upon. For specific information regarding your needs, concerns and plan, you must consult with your tax advisor, financial planner and estate planning attorney to discuss your situation and obtain advice. © 2009-2016 Matthew M. Wallace, CPA, JD
Published edited June 26, 2016 in The Times Herald newspaper, Port Huron, Michigan as: You can pick who’s in charge of funeral