One of the reasons estate planning is essential for all adults, regardless of age or level of wealth, is to ensure that their wishes about things that are important to them are carried out. We have financial and medical powers of attorney so that people can appoint individuals they trust to make decisions regarding their finances and medical care. We encourage people to write wills or a revocable living trust so that they can appoint guardians to care for their minor children. There are any number of tools available so that people can transfer their assets to others in the way they choose.
Until now, though, there has been no official way for Michigan residents to designate someone they trust to plan their funerals. All that will change with a new law that takes effect on June 27, 2016.
What is a Funeral Representative?
Prior to the new law taking effect, the next of kin of a deceased person (“decedent”) were in charge of the decedent’s funeral. The priority by which of your heirs would have authority to make such decisions was dictated by a statute, NOT by you.
In addition, if there was more than one of your next of kin who had the authority and they disagreed, the position taken by the majority of them would prevail. Of course, this would have the potential not only to disregard your actual wishes, but to create lasting rifts between family members.
Imagine a scenario in which an elderly widow dies, survived by her three adult children, none of whom agree about their mother’s funeral plans. At a time when they should be comforting each other, they might end up fighting, their argument fueled by grief. Another foreseeable scenario involves adult children from a deceased person’s first marriage fighting with the decedent’s second spouse about funeral arrangements and the disposition of the body.
The new law is intended to avoid such outcomes. It allows an individual (“declarant”) to appoint a “funeral representative” in a will or other writing so long as it meets the following criteria:
- The writing must be dated.
- The writing must be signed before a notary public, or in the presence of two other witnesses.
The document appointing a funeral representative also allows for the nomination of a successor funeral representative, in the event the primary funeral representative is unable or unwilling to serve. The designation of a funeral representative can be revoked in writing by a declarant; this writing, like the original document, must be witnessed by a notary or by two witnesses. If you designate your spouse as your funeral representative and subsequently divorce, rest assured that the law provides for the automatic revocation of that designation.
There are some limitations on who may act as a funeral representative. The representative must be over eighteen years of age and cannot be a licensed health professional or a volunteer or employee of a facility that provides care during your final illness. Officers or employees of a funeral establishment, cemetery or crematory that provide services for you are also prohibited from serving as your funeral representative. (An exception to this is if a family member you would otherwise choose happens to work in one of these capacities.) Last but not least, someone who has been criminally charged with your murder may not serve as your funeral representative.
Duties of a Michigan Funeral Representative
Your funeral representative, as the name implies, has the right and power to make decisions about your funeral arrangements. This includes whether you will be buried or cremated, and, if cremated, how your cremated remains will be kept or disposed of. Importantly, a funeral representative is liable for making sure the costs associated with the disposition of your body are paid. They may be paid by the funeral representative him- or herself, or through insurance, your estate, or some other source, but the funeral representative is responsible for coordinating this payment.
In part because of this responsibility, a funeral representative must sign an acknowledgement of his or her duties. The representative’s powers become effective only upon your death, and a representative cannot assign the powers and duties conveyed.
While the declarant is free, within the limitations noted, to choose a funeral representative, there is no legal way to bind the funeral representative to carry out the declarant’s wishes. Therefore, when selecting a funeral representative, it’s essential not only to communicate your wishes to that person, but to make sure that your chosen representative is someone you can count on to honor those wishes.
The ability to appoint a funeral representative is a welcome development in Michigan law. If you value the opportunity to exercise influence over your final arrangements and minimize the risk of fighting among your loved ones, contact an experienced Michigan estate planning attorney to make sure your estate planning documents designate a funeral representative.