Funeral Representative Legislation

On June 27, 2016, an amendment to Michigan’s Estates and Protected Individuals Code (“EPIC”) took effect which allows individuals to designate a funeral representative, and gives the funeral representative the power to make decisions concerning funeral arrangements and other decisions associated with that individual’s final wishes.  This amendment, if taken advantage of, can prevent disputes over a deceased person’s final wishes.

Why was this amendment necessary?

Prior to this amendment taking effect, EPIC provided that a surviving spouse had the right to make decisions concerning the disposition of a person’s body, followed by the children and other relatives as defined in the law.  However, when, for instance, a person was not survived by a spouse and the children could not agree on final arrangements, often times the Probate Court had to get involved to make a final decision.  The prior version of EPIC did not place an emphasis on the wishes of the decedent or give the decedent any say over the priority of persons authorized to make decisions, so occasionally family members were able to make decisions that were contrary to the decedent’s pre-planned wishes.

This new amendment attempts to avoid disputes over final arrangements, and to make it easier for a person to ensure that a trusted individual, who knows the person’s final wishes, has authority to carry them out.  Now, so long as an adult is of sound mind, that individual can nominate a “funeral representative” to make decisions after death concerning funeral arrangements and gives the funeral representative priority over anyone else[1] when it comes to making decisions concerning funeral arrangements and disposition of bodily remains.

What authority does a funeral representative have?

A designated funeral representative is presumed to have the right to make decisions about funeral arrangements and the handling, disposition or disinterment of a decedent’s body, including, without limitation, decisions about cremation and the right to retrieve from the funeral establishment and possess cremated remains of a decedent immediately after cremation.  A funeral representative cannot take care of the handling, disposition or disinterment of a body – those tasks must still be performed by a person licensed to practice mortuary science.

Who can act as a funeral representative?

In order to be eligible to act as a funeral representative, a person must be over 18 and of sound mind.  Unless the person is a surviving spouse or relative of the deceased, the following persons cannot act as a funeral representative:

  1. An owner, agent, representative or employee of a funeral establishment that will provide funeral services to the deceased;
  2. A health professional, or an employee or volunteer at a health facility, who provided medical treatment to the decedent during the decedent’s final illness or immediately before the decedent’s death;
  3. An owner or representative of a health facility where medical treatment or nursing care was provided to the decedent; or
  4. An owner, agent, representative or employee of a cemetery at which the decedent’s body will be interred, entombed or inurned.

How is a funeral representative held accountable?

Unfortunately, this new amendment does not give specific instructions or guidance for how a funeral representative should act.  However, this amendment does make a funeral representative fiduciary, and therefore the funeral representative will owe a fiduciary duty to the decedent.  It remains to be seen how this provision will be interpreted by Michigan courts.

How can a funeral representative be designated?

In order to designate a funeral representative, the designation must be in writing, dated, and signed voluntarily by the person making the designation.  A funeral representative designation can be made in a Will, Patient Advocate Designation or a separate writing.  If the funeral designation is made in an individual’s Will, the Will does not have to be admitted to probate for the designation to be valid.  Additionally, the designation must be signed in the presence of and signed by two independent witnesses and/or acknowledged before a Notary Public.

What happens if my funeral representative cannot be located or cannot act?

You can designate a successor funeral representative in a funeral representative designation in case the first individual named as funeral representative does not accept, is incapacitated, resigns or is removed.  If your designated funeral representative cannot be located or cannot act and no successor is named, the following persons have the rights and powers to make the decisions your funeral representative could have made:

  1. Surviving Spouse
  2. Children (over 18)
  3. Grandchildren (over 18)
  4. Parents
  5. Grandparents
  6. Siblings
  7. Step-siblings
  8. More remote relatives.

If a person with priority (funeral representative or otherwise) cannot be located or fails to notify the funeral establishment of his or her intent to act within 48 hours after receiving notification of the decedent’s death, the rights and powers pass to the individual(s) with the next highest priority.

It is also important to note that the priority outlined above also applies when no funeral representative designation is made.

Can a funeral representative pre-plan a funeral?

Under the current law, no.  The authority under a funeral representative designation is exercisable by a funeral representative only after the death of the decedent.

If you are interested in updating your estate planning documents to include a Funeral Representative Designation, please contact us today!

[1] If the decedent was a member of the armed services at the time of the decedent’s death, a person designated to direct the disposition of the service member’s remains according to federal law, regulation, policy, directive or instruction has the first priority to make these decisions.