NO NEED TO FIGHT OVER MY DEAD BODY! Michigan Law Now Authorizes Designation of a Funeral Representative

Michigan law was recently amended to update and simplify the process for making and carrying out funeral arrangements after a person’s death.  2016 PA 57 revises the order of priority of the individuals who are presumed to have the right and power to make decisions about funeral arrangements and the disposition of a deceased person’s body.  Currently, a decedent’s surviving spouse, adult children, other adult descendants, parents, and next of kin are presumed to have the right to make such decisions in that order of priority.

Effective June 27, 2016, any individual of sound mind who is 18 years of age or older may designate a “funeral representative.” Unless the decedent died while serving in the military, the designated funeral representative will have first priority in making decisions regarding funeral arrangements and the handling, disposition, or disinterment of the decedent’s body, including decisions about cremation and the right to possess the cremated remains.

The formal designation of an individual entrusted to carry out a person’s wishes regarding funeral arrangements gives some assurance that those wishes will be carried out.  Having a designation in place can avoid disagreements between family members or the situation where the family member with presumed priority refuses to carry out the decedent’s instructions.  A designation may be especially helpful in a family with a history of conflict.

The appointment must be made by means of a written dated and voluntarily signed document which must be either (i) signed before two witnesses (who must also sign the document) or (ii) acknowledged before a notary public.  The designation may be included in the decedent’s will, patient advocate designation, or other writing.

The new law contains requirements regarding individuals who may act as funeral representative and who may witness the execution of the document.  For example, a person associated with a funeral establishment, cemetery, or crematory that will provide services may not act as a witness.  Such a person also may not be designated as a funeral representative unless he or she is a family member or the surviving spouse of the decedent.  In addition, divorce or annulment revokes any designation of that former spouse or his or her relative as funeral representative.  Other circumstances, such as intentional or felonious killing or conviction of abuse, neglect, or exploitation of the decedent also revokes the nomination of the killer or abuser.

The law also permits designation of a successor funeral representative in case the initially designated representative is not available or is unwilling to act after the decedent’s death.  It also prioritizes the persons who can act if the designated funeral representative or successor funeral representative cannot be located after reasonable effort or refuses or fails to act within 48 hours of being notified of the decedent’s death.

A funeral representative who exercises his or her powers “must ensure payment for the costs of disposition though a trust, insurance, a commitment by another person, a prepaid [funeral] contract…or other effective or binding means” and “is liable for the costs of disposition” to the extent payment is not ensured.  As a practical matter this is nothing new since, formerly, a person who made funeral arrangements was usually required to sign a contract with the funeral services provider.  However, it would be good practice for wills and trusts to contain an explicit instruction that the estate or trust first reimburse or indemnify the funeral representative for the costs of funeral arrangements made.