Michigan Designated Funeral Representative

A new law, 2016 Publ. Act 57, effective June 27, 2016, authorizes a person identified as the declarant, to designate a funeral representative to make decisions about postmortem funeral arrangements and the handling, cremation, disposition, or disinterment of the declarant’s body. MCLA 700.3206(2)(a).  The Act includes authority for cremation and determination of the right to possess the cremains, which is an important change. Under prior law, all persons with equal priority as next of kin had to approve cremation.

The Act revises the priority of persons who may decide on final arrangements and inserts a “designated funeral representative” ahead of spouses, family members and others. MCLA 700.3206(3). The only authority with higher priority is a person designated to direct the disposition of a service member’s remains under federal law or Department of Defense regulation, when the decedent was a service member at the time of death. Id

Historic reenactor Les Scott, dressed as the town mortician at the door of his funeral parlor at South Park City Museum, a collection of historic buildings in Fairplay, Colorado

Historic reenactor Les Scott, dressed as the town mortician at the door of his funeral parlor at South Park City Museum, a collection of historic buildings in Fairplay, Colorado

 

A funeral representative designation may be included in another estate-planning document, such as a will or designation of patient advocate, but it must be executed with two witnesses or be notarized. MCLA 700.3206(2)(b). Like a designation of patient advocate, a funeral representative designation may not appoint or be witnessed by a person associated with a declarant’s medical provider, and persons associated with a funeral establishment, cemetery, or crematory that would provide services for the declarant are also excluded. MCLA 700.3206(2)(c).

A funeral representative designation may be revoked by the declarant, or by the representative’s resignation, absence despite reasonable efforts to locate, or refusal act within 48 hours of receiving notice of the decedent’s death. Revocation by the declarant must be in writing and signed with the formalities of the original designation. MCLA 700.3206b.

The declarant may appoint a contingent representative. MCLA 700.3206a(1). The represtentative accepts the appointment by signing an acceptance or by acting as the funeral representative. MCLA 700.3206a(2).

mortuaryCircumstances that would bar an individual from inheriting from the declarant, such as divorce or annulment of marriage to the declarant, desertion disqualify the individual. MCLA 700.2801(2).  Being convicted of abuse or killing of the declarant, disqualifies the individual, MCLA 700.2802(2)(c), and being charged with the abuse or killing of the declarante bars the individual from acting as the designated funeral representative while the charges are pending. MCLA 700.3206(12).

A major concern for an individual nominated to act as designated funeral representative is personal liability for the declarant’s final arrangements. Unless he or she is a special fiduciary, the medical examiner, or the director of corrections in the case of a prisoner, a person who acts as designated funeral representative is personally liable for the costs of disposition to the extent that payment is not covered under a trust, prepaid funeral contract, or other “effective and binding means.” MCLA 700.3206(13). This is alarming because the statute includes no requirement for the funeral director or other provider of funeral or burial services to advise the nominated funeral representative that if he or she accepts the appointment and makes the necessary dispositions that there could be personal liability. The representative is not even required to sign an acceptance of appointment, if he or she accepts by performance.

Adapted with editorial changes from John B. Payne, “Michigan Probate, 2016-17 ed.,” Chapter 13, 125-27 (Thomson Reuters 2016).

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2017 John B. Payne, Attorney

It Can Be Your Funeral in Pennsylvania

On December 11, 2010, I posted a column entitled, “It’s Your Funeral – Or Is It?” In that post I painted a worst-case situation where a scorned wife might put her husband’s cremains (cremated remains) in voodoo candles or a Porta-Johnny at a Korn concert. I said that a decedent’s control over his body ends at death and court cases have established that a person has no property interest in the body that extends past death. Although it makes my mouth taste as if it was full of cremains, I am forced to admit that I was wrong with regard to Pennsylvania.

My esteemed colleague, H. Amos Goodall, Jr., of State College, Pennsylvania, has informed me of an often-overlooked Pennsylvania law. This provision, which pertains to health-care powers of attorney, allows a properly appointed health care agent to “make anatomical gifts, dispose of the remains and consent to autopsies.” 20 Pa.C.S.A. § 5456. I am now revising my Pennsylvania power of attorney to include these powers.

Therefore, if you are a Redwings fan in a family of Penguin zealots you can now ensure that they will not flush your cremains in the men’s room at CONSOL Energy Center or add them to a concrete lawn sculpture of Iceburgh. Appoint a fellow Redwings fan (assuming you can find one in southwest Pennsylvania) as your health care agent and give him or her authority to make your final arrangements–for example, burial in Allegheny Cemetery under a massive monument with a Redwings wheel and wings. For a proper health-care power of attorney, call my Pittsburgh office below.

 

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com
 
©2011 John B. Payne, Attorney
 
 

It’s Your Funeral — Or Is It?

Many of my clients are in denial. They do not want to consider the fact that they will die some day. Others take great comfort in having arranged for their funerals and the disposition of their remains. However, one fellow always carried a picture of the cemetery plot, complete with marker, where he and his wife would someday repose and was happy to show it to anyone who asked.

If you are in the latter category, you may be disappointed to learn that in Michigan and Pennsylvania, as in most states, your final arrangements may be ignored by your family when you die. One’s body is personal property and a decedent cannot own anything. Therefore, your body belongs to your heirs, to do with what they want. One would think that the body could be directed to a specific heir by will, but U.S. courts have held that the body is not part of the estate that can be disposed that way.

Your surviving spouse has the authority to make decisions about your funeral arrangements, including the disposition, disinterment and cremation of your body. She also has the right to possess your cremated remains or to give or dispose of them any way she pleases. Only if there is no surviving spouse do your family members get to make those decisions, based on how closely related they are to you.

Let us assume that you are a devout Catholic and you have arranged an elaborate funeral for yourself in your parish. Your good friend, Msgr. Panatela will deliver the eulogy. You will then be buried in sacred ground in St. Gottinhimmel Cemetery, with military honors, since you are a war veteran.

Let us further assume that you caught your wife, who left the church to become a Santaría priestess, canoodling with a Canadian candlemaker, and you threw her out of the house with nothing but the negligeé she was wearing at the time. She now hates you more than her period and would do anything in her power to destroy you. If the spell she is whipping up to neutralize your Lipitor is successful and you expire before the divorce is final, she gets to arrange your funeral and the disposition of your body. You will be cremated and the ashes incorporated in voodoo candles, if not dumped in a Porta-Johnny at a Korn concert.

“Wait a minute,” you say, “I signed a power of attorney and specifically gave the power to arrange my funeral and burial to Msgr. Panatela.” Unfortunately, your power of attorney terminated when you did. The person whom you appointed to take care of your final arrangements has no power to make such decisions unless no family member steps forward. The only exception arises if you authorized organ donation or use of your body for medical or scientific purposes. Then the person you authorized to make anatomical gifts may ignore the objection of the spouse or family members in Michigan. In Pennsylvania, the spouse or family members may prevent even anatomical gifts from being completed.

Paying the funeral home in advance does not guarantee that your plan will not be changed after your death. Your spouse or family may elect a more or less expensive funeral or demand that the funds be transferred to a different mortuary.

What can you do if you are against being cremated? Add fire-retardant to your diet? If you want to be cremated, do you have to plant an incendiary device under your bed?  You can fast-track your cremation, but it would be difficult to prevent it if your spouse or next-of-kin were intent making a cinder block out of you.

You cannot make your final arrangements unmodifiable, but having paid in advance for the services you want will be a strong message about what your preferences are. You can also discourage your family from interfering through a provision in your will or trust that any change in your final arrangements will result in disinheritance. In this, as in many other areas of life, planning ahead is important and consultation with an attorney can be wise and cost-effective.

The legal base for this discussion is the following Pennsylvania and Michigan laws: 20 Pa.C.S.A. sec. 8616 and MCLA 700.3206.

 

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com
 
©2010 John B. Payne, Attorney