The Michigan Legislature recently passed a bill that became effective as of June 27, 2016, that amends the Estates and Protected Individuals Code by including a provision allowing the appointment by an adult (an individual 18 years of age or older who is of sound mind at the time a funeral representative designation is made) of a funeral representative. A funeral representative has 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.
In order for an individual to name a funeral representative, the designation must be in writing, signed, witnessed by two qualified witnesses, dated and executed voluntarily. A qualified witness must not be the designated funeral representative or any of the following:
(i) A health professional, or an employee of or volunteer at a health facility or veterans facility, who provided medical treatment or nursing care to the declarant during the final illness or immediately before the declarant's death, or a partner, member, shareholder, owner, or representative of the health facility where medical treatment or nursing care was provided.
(ii) An officer, partner, member, shareholder, owner, representative, or employee of a cemetery at which the declarant's body will be interred, entombed, or inurned.
(iii) An officer, partner, member, shareholder, owner, representative, or employee of a crematory that will provide the declarant's cremation services.
The Act also sets forth the priority if the funeral representative fails to act in a timely fashion. The order of priority is:
1. The surviving spouse.
2. The individual or individuals 18 years of age or older in the following order of priority:
(i) The decedent's children.
(ii) The decedent's grandchildren.
(iii) The decedent's parents.
(iv) The decedent's grandparents.
(v) The decedent's siblings.
(vi) A descendant of the decedent's parents who first notifies the funeral establishment in possession of the decedent's body of the descendant's decision to exercise his or her rights under section of the Act relating to the funeral arrangements and the handling of the body.
(vii) A descendant of the decedent's grandparents who first notifies the funeral establishment in possession of the decedent's body of the descendant's decision to exercise his or her rights under the section of the Act relating to the funeral arrangements and the handling of the body.
The ability to designate a funeral representative may be very important in several different situations, including
a. for those clients in a domestic partnership other than a marriage;
b. for married individuals who have no children and only distant relatives;
c. for individuals with several children who do not live in the same geographical area as the parent; or
d. where there is a conflict between the siblings.
Perhaps a person's religious or cultural beliefs would be best served by the appointment of a funeral representative who could, in fact, be trusted to carry out the wishes of the decedent.
Without a designation in place, the decision regarding a funeral may have to be made by committee or by a distant cousin.
As with other newly enacted legislation, there may be modifications of the Act in the future, but for now it is certainly an alternative worthy of consideration when reviewing your estate planning documents.
Please talk to us about the possibility of including a Designation of Funeral Representative in your estate plan.