New Law Update:
A new law regarding who may make your funeral and burial arrangements went into effect on June 27, 2016. MCL 700.3206(2) now gives priority to a designated “funeral representative” to make funeral and burial arrangements according to your wishes.
You may add this designation to your will or patient advocate designation. You may also have a separate writing for this purpose. Regardless of the type of document, your designation must be witnessed.
If you do not have a designated funeral representative, the following is the order of priority of who has the authority to make funeral and burial arrangements:
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surviving spouse;
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children;
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grandchildren;
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parents;
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grandparents;
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siblings;
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descendant of the decedent’s parents;
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descendant of the decedent’s grandparents;
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personal representative or nominated personal representative;
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decedent’s guardian;
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special personal representative; or
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medical examiner.
If there are 2 or more individuals in a class (i.e. children), the rights and powers shall be exercised as decided by a majority. If a majority cannot agree, any of the individuals may file a petition with the court.
This law is a presumption of the priority status of the authority. As we all know, presumptions can be challenged. If there is a conflict or challenge of priority, an individual may file an action in court to resolve who has the authority to make funeral and burial arrangements.
This new law comes with some cautions. First, a person who has this right and exercises said power over the disposition of your body must ensure payment for the costs of the disposition through a trust, insurance, a commitment by another person, a prepaid contract under the prepaid funeral and cemetery sales act, or other effective and binding means. To the extent payment is not ensured under this subsection, the person described in this subsection is liable for the costs of the disposition.
Second, this new law may be important to you if you have concerns regarding your family carrying out your wishes (e.g. cremation or no funeral service). However, the law appears to stop short of guaranteeing your wishes are carried out by the designated funeral representative. The law merely allows you to hedge your bet by selecting a person you know will honor your burial and funeral wishes.
Your funeral representative is not a permanent designation. You may revoke your designated funeral representative designation, but you must do so in writing with proper witnesses. If you sign a later funeral representative designation, the new designation supersedes the previous designation.
Your designation is also considered revoked if the funeral representative resigned; the funeral representative cannot be located after reasonable efforts; or the funeral representative refuses to act within 48 hours after receiving notice of the decedent's death.
A designated funeral representative does not void or otherwise affect an anatomical gift made under a patient advocate designation.
You may want to make an appointment to discuss this new law and how it affects you and your family.