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New Funeral Representative Legislation effective June 27, 2016

By Jennifer M. Harvey posted 06-24-2016 10:28

  

    On June 27, 2016, the new version of MCL 700.1104, 700.2801 et seq., and 700.3206 et seq. is effective. These statutes were amended by 2016 PA 57 to allow a legally competent individual to name and appoint a funeral representative to make decisions about what happens to that individual’s remains after he or she dies. This includes both disposition and final resting place. The designated 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 possess cremated remains of the decedent.” MCL 700.1104(j).

The Law Before The Revision

   Before the legislature’s revision, MCL 700.3206 et seq., and not decedent’s will, controls what happens to a decedent’s remains, and the decision is made by next of kin (see also Michigan Civil Jurisprudence Corpses and Burial Section 3 by Janna M. Pulver). Interestingly, there is no case law on this matter because the statute is so clear that there have been no known challenges to date at the appellate levels. Many on-line internet blogs citing MCL 700.3206 as the deciding factor that next-of-kin – not a Will – decides what happens to a decedent’s remains, one of these made by Attorney and licensed Funeral Director Mark T. Evely, an expert in this area of law. Mr. Evely notes, “Even if you put your wishes in a will or pre-pay your funeral, your next-of-kin can override your wishes and decide the arrangements and disposition” (Avvo.com blog by Mark T. Evely). The Michigan Funeral Directors Association (MFDA) website also notes that “Michigan law does not guarantee that your preplanned choices will be carried out. The next of kin is empowered to alter your choices after death.” MFDA.org. Mr. Evely also writes about this in 2 Michigan Estate Planning Section 25.03, Chapter 25 Funeral Law, stating “MCL 700.3206, referred to as the Right of Disposition Law, sets out the hierarchy of authority for making funeral and disposition decisions . . . The statute . . . provides that if there is disagreement between individuals sharing the rights to control arrangements and disposition, then the rights and the powers will be decided by a majority of those individuals.”

       Per MCL 700.3206, if there is no spouse, the adult children (and if none next of kin) decide and if there is a disagreement, the majority rules. If a party wishes for judicial intervention, the party files in circuit court. MCL 700.3208.  MCL 700.3207 outlines the procedure:

 (1) If there is a disagreement as described in section 3206(4) . . . 1 or more of the following may petition the court to determine who has the authority to exercise the rights and powers under section 3206(1):

   (a)  An individual with the rights and powers under section 3206(1).

   (b)  A funeral establishment that has custody of the decedent’s body.

   (2)  Venue for a petition filed under subsection (1) is in the county in which the decedent was domiciled at the time of death.

   (3)  On receipt of a petition under this section, the court shall set a date for a hearing on the petition. The hearing date shall be as soon as possible, but not later than 7 business days after the date the petition is filed . . .

See also Michigan Civil Jurisprudence Corpses and Burial Section 3 by Janna M. Pulver.

       Mr. Evely notes that if “the person or persons entitled to make decisions . . . do not exercise their rights, then the decision-making power goes to the remaining members of the class . . .”  Evely, Mark, 2 Michigan Estate Planning Section 25.03, Chapter 25 Funeral Law.

    Absent any next-of-kin, the Personal Representative of the decedent’s estate can make the decision regarding the disposition and internment of the decedent’s remains.

The New Law – Who Can Make the Decisions and Who Cannot Make the Decisions

 

2016 PA 57 amends 700.3206 et seq. and sets the order of priority as follows:

 (a) If the decedent was a service member at the time of the decedent’s death, a person designated to direct the disposition of the service member’s remains according to a statute of the United States or regulation, policy, directive, or instruction of the Department of Defense.

(b) A funeral representative designated under subsection (2).

(c) The surviving spouse.

(d) Subject to subdivision (e), 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 subsection (1).

    (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 subsection (1).

(e) If an individual described in subdivision (d) had the right to dispose of the decedent’s body under subsection (1), but affirmatively declined to exercise his or her right or failed to exercise his or her right within 48 hours after receiving notification of the decedent’s death, the individual does not have the right.

 

    The following individuals, unless they are the surviving spouse or next-of-kin,  cannot make the decision as to a decedent’s remains:

  • A licensed health professional;

  • An employee or volunteer of a health or veteran’s facility that provided care during the final illness of the decedent;

  • An officer or employee of a funeral establishment that will provide services for the decedent’s remains;

  • An officer or employee of a cemetery where the decedent’s remains will be interred; or

  • An officer or employee of a crematory where the decedent will be cremated.

    This amended law does not allow a divorced spouse or willfully absent spouse to make decisions regarding a decedent’s remains. Similarly, an individual who purposefully kills a decedent may not make decisions regarding his or her remains. In either of these situations, the next individual in the order of priority would be allowed to make the decision. A director of the department of corrections or its designee could make the decision if the decedent was incarcerated (but would act absent any of the above designated actors); and a medical examiner could also make the decision if none of the above listed designees can be found. Also, a court could appoint a special personal representative or personal representative to make the decision if no others noted above exist.

    It is also very helpful that the law requires an individual to act or decline to act within 48- hours of notification of death.  These situations are very time sensitive for the family of the decedent and also for the funeral home. Also, if an attorney is approached for legal counsel regarding the disposition of a decedent’s remains, it is important to know how time-sensitive this is and whether the time period has passed for a prospective client to act per statute.

 

Fast Practice Tips

  1. The law designates who not what. The amended law allows an individual the ability to designate who makes the decision regarding his or her remains. You may have a client who wants to make a very detailed list of how the client wants the funeral and disposition of remains to occur. This client must be advised to take this list to the designated funeral representative but understand that the funeral representative can still make other arrangements and by law does not have to follow the client’s wishes.

  2. Who pays for the funeral and burial. The new law effectively places the funeral representative on the hook for funeral and burial expenses. Clearly, this is an understandable reason why a designated funeral representative may decline to act as such. In drafting, indemnifying the funeral representative from paying costs out-of-pocket and indicating that funds for payment come from the decedent’s estate or trust is wise. Still, the funeral representative would still need to follow the law and make “reasonable” funeral and burial arrangements with the available funds. Michael Jackson’s golden coffin may be approved by Michigan law as “reasonable” for the size of his estate, but this would not be “reasonable” for most other estates. Be careful in advising a client who wants to designate an adult child as funeral representative when the adult children do not get along; in this circumstance, perhaps leaving life insurance to the funeral representative to pay any funeral and burial expenses (as well as potential court costs and attorney fees) would be prudent.

  3. Advising regarding fiduciary duties. Interestingly, neither the new amendment nor any other provision in the Estate and Protected Individuals Code shows that a funeral representative has a fiduciary duty to the decedent. Rather, MCL 700.1212 provides that a “fiduciary stands in a position of confidence and trust with respect to each heir, devisee, beneficiary, protected individual, or ward for whom the person is a fiduciary.” When advising a funeral representative, having an instruction list from the decedent is helpful in carrying out disposition and internment requests. It is also important for the funeral representative to wisely budget these expenses and be flexible if the decedent’s estate and trust do not have funds for an extravagant funeral and burial as requested by the decedent.

  4. Revocation. The funeral representative designation can be revoked in writing and the client may also appoint another funeral representative (and also list back-up representatives in the event that the first appointed cannot act or refuses to act).

  5. Placing the funeral representative designation. Per the statute, the funeral representative designation must be either (1) witnessed by two individuals or (2) notarized. This designation can be (1) placed in a Last Will & Testament, (2) Health Care Power of Attorney, or (3) its own stand-alone Funeral Representative designation document. It is important to understand how these documents work together and how the decision-makers can get their hands on the documents. Of course, we would not want a Will filed with the county probate court that contains a funeral representative designation to be away from the hands of a funeral home; still, the Will may need to be probated. Also, health care powers of attorney with this funeral representative designation could get misplaced in a hospital or hospice facility as powers of attorney are only effective during the life of the individual executing them. It is prudent to have a stand-alone document and also to have the funeral representative designation embedded in the text of a Will and perhaps also a Health Care Power of Attorney to be the most thorough in communicating your client’s wishes. Of course, make sure that no provisions conflict and if a client requests changes down the road that these changes be applied to all applicable documents. I would also recommend that these documents be both notarized and witnessed by two individuals. As with all estate planning documents, it’s not just about following the statutes; it’s about doing all that you can to ensure that your client’s wishes are followed.

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