Developed in 1998 by the Government and Legal Affairs Task Force of the International Cemetery and Funeral Association
In today’s complex society, the issue of who has the right to control the final disposition of a deceased human being has become the subject of controversy. Written instruments of various types, including wills and durable powers of attorney, are being used to establish the right of an individual to control his or her final disposition, and are now indispensable tools for individuals to pre-plan for their own funeral and cemetery needs. Such documents can be used to designate an individual, known as the authorizing agent, to assume these responsibilities on the deceased’s behalf. These documents can also have substantial operational benefits to cemeteries and funeral homes while effectively addressing a growing social problem resulting from changing family units, changing lifestyle issues, and increasing life expectancy.
- Enabling legislation for the purpose of controlling the final disposition of human remains should contain provisions for at least five elements. These are:
- directions where no proxy exists
- the document form
- modifications of directions
- issues of liability
- In addition to relevant definitions that may already exist in state laws governing funeral establishments and cemetery authorities, some additional definitions may be needed for terms such as “close friend” and “reasonably available.”
- A priority of persons, known as the “authorizing agent,” who are lawfully authorized to control the final disposition of the decedent, should be established by statute. The authorizing agent would also be liable for the reasonable expenses of the funeral and cemetery merchandise and services. The order of priority for the authorizing agent could be as follows:Where no written designation of the authorizing agent has been made by the decedent, there would be a reliance upon the statutory order of priority to control final disposition.
- the surviving spouse;
- any one of decedent’s surviving children eighteen years of age or older;
- either one of decedent’s surviving parents;
- any one of decedent’s surviving siblings eighteen years of age or older;
- a close friend of decedent who is eighteen years of age or older.
- If the authorizing agent is not reasonably available, or is unwilling or incompetent to serve, the individuals listed in order of priority have the right to control the final disposition.
- The final disposition of the decedent, including by cremation, should be conducted in a manner appropriate to the moral and personal beliefs of the decedent to the extent reasonably possible.
- The written designation form for the decedent to control final disposition should be prescribed by statute to assure uniformity and validity. At a minimum, the form should contain the name of the individual executing the document (the principal); a recitation that the principal is of legal age, of sound mind, and is voluntarily making known his or her final disposition wishes; the name, address, and telephone number of the person being appointed authorizing agent to control the final disposition; special instructions concerning the final disposition or limiting the powers granted to the authorizing agent.
- The form should also provide for successor authorizing agents in the event that the appointed authorizing agent dies, resigns, is unwilling or unable to act. Each successor-in-interest should be listed in priority and the form should state that the appointment becomes effective upon the death of the principal.
- The form should contain a revocation of any prior appointments and a statement holding harmless from liability any cemetery authority, crematory authority, direct disposer, funeral establishment, or related businesses and their employees and agents, where they have acted in reliance upon the form.
- The form should contain an “assumption” clause whereby the authorizing agent and each successor-in-interest agrees that by accepting the appointment, each assumes the obligations provided in the form and is bound by the provisions of the applicable public health law.
- The form should provide for the date and the signature of the principal making the appointment and the signatures of a minimum of two witnesses.
- The form may be modified by will subject to the testamentary requirements of law. Statutory provisions should address the modification of the form by will or through other means including the legal effect of oral modifications.
- The authorizing agent should carry out the decedent’s wishes to the extent that such agent or the decedent’s estate are financially able to do so.
- There should be a limitation of liability for cemetery authorities, crematory authorities, direct disposers, funeral establishments, and related businesses that have carried out the decedent’s wishes based on directions contained in the form or in a will, whether or not the will has been probated or otherwise declared valid, to the extent that such conduct has been in good faith.
- Where a person represents himself as the authorizing agent of the decedent and makes final disposition arrangements, such person should be held liable for all damages, whether directly or indirectly, that may result from any party’s reliance upon such representation. This provision should include reliance on the authorizing agent’s identification of the decedent.
- Where a dispute exists among any of the authorizing agents, a cemetery authority, crematory authority, direct disposer, funeral establishment, or similar business should not be held liable for refusing to accept the human remains, or for refusing to inter or otherwise dispose of the human remains, until it receives a court order or other formal notification signed by each of the disputing parties that the dispute has been resolved or settled.