Fact vs Fiction: Who Is Really In Charge of Your Funeral Planning?

posted on October 15, 2016 by Willingham & Cote

by Lee B. Reimann, Estate & Gifts

What Is a Funeral Representative and Do You Need One?

I love to read spy novels, and while I can suspend my disbelief at most of the hero or heroine actions – avoiding barrages of bullets, sneaking in and out of heavily secured buildings; travelling internationally without detection – my disbelief is brought into play when the author allows the hero or heroine to avoid legal requirements.  One of the situations that causes me pause in a novel and say “well, they can’t do that” is when the hero or heroine claims the remains of someone at the morgue with a Power of Attorney, because when you give someone a Power of Attorney, that power ends at the giver’s death. 

In the “real world” – the one in which no one is a spy – there can be a problem with who has authority to make decisions after the death of a loved one.  Michigan law previously provided that “next of kin” were the decision makers as to funeral arrangements.  Priority went to surviving spouse, then adult children or grandchildren, then parents or grandparents and then siblings and down the generations.  While this scheme worked for many people, I have had numerous clients over the years that had specific wishes as to the arrangements after their death and were not comfortable leaving these arrangements to chance.  And as of June 27, 2016, Michigan has a new law that will allow for an individual to designate a “funeral representative” (hereinafter Funeral Representative).  The law provides that someone who is designated as a Funeral Representative “is presumed to have the right and power to make decisions about funeral arrangements and the handling, disposition, or disinterment of a decedent’s body, including, but not limited to, decisions about cremation, and the right to retrieve from the funeral establishment and possess cremated remains of the decedent immediately after cremation.” MCL 700.3206(1).

To empower a Funeral Representative one must create a writing that designates the representative and this writing must be signed before two witnesses or a notary.  The designation can be a separate document or included in a Will or Patient Advocate Designation (Medical Power of Attorney).  The Funeral Representative must accept the appointment in writing.  One should note, however, that the person who is appointed and acts as Funeral Representative, must guarantee payment for the services requested.  This does not mean that the cost comes out of the Funeral Representative’s own money – funeral and other expenses should be paid from the decedent’s trust or probate estate or prepaid funeral contract – but if there is no other money, the Funeral Representative will be responsible for payment.

Now this document is not necessary for everyone.  Some people believe that funerals and the related arrangements are ceremonies for the living and the decision making should be left to them.  Others, however, have very strong opinions as to what is to be done after their death.  Even if you fall into this latter category, you may not need a Funeral Representative if you believe that your next of kin know and will do that which you want done.  This document will be important for those people who do not have a lot of close relatives or are concerned that the relatives that they have will not honor their wishes after death.

As this is a new law, there are some uncertainties as to its application.  Attorneys have raised questions as to whether the Funeral Representative owes a duty to the heirs of the decedent or to the decedent.  It is also true that your Funeral Representative does not need to follow your instructions – so it becomes very important to choose a Funeral Representative that you believe will do as you ask.

And in the future, if you read spy novels, please note that “[a]n individual who has been criminally charged with the intentional killing of the decedent shall not exercise the right” to be the Funeral Representative. MCL 700.3206(12).  I guess that the Legislature reads spy novels as well.

The information contained in this website is provided for informational purposes only, and should not be construed as legal advice on any subject matter.  


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