This past spring in Lansing, during an act of governance which received little publicity, the legislature crafted — and the governor signed into law — the “Funeral Representative Act of 2016,” which now bestows the moniker of “fiduciary” on whomever you choose to represent your final wishes after you’ve cross into the hereafter.
Senate Bill 551, also known as “Public Act 57 of 2016,” simplifies the process for effectuating funeral arrangements in Michigan; the law took effect on June 27, 2016.
As a result, people in Michigan now have the ability to appoint a “funeral representative” who may make arrangements and decisions regarding the disposition of their last remains after death.
The appointment of the representative can be made through a will, patient advocate designation or in a separate document. Before SB 551, the “next of kin” was granted the legal authority to make decisions regarding the funeral process, yet had no legal obligation to follow any codified last wishes of the decedent.
In addition, the previous legal framework never addressed situations where next of kin disagreed regarding funeral arrangements or final disposition decisions, or where next of kin refused to follow the known directions of the decedent.
Clearly, this law is in actuality a benefit to the decedent’s survivors — no more squabbling over dear, departed Uncle Harry’s ashes – since the decedent is just that…deceased. However, one’s wishes about funeral arrangements may be very important to people emotionally, religiously, culturally or with regard to family legacy and tradition.
The act also provides clarity to family members regarding who is responsible for handling the post-death decisions regarding funeral, burial or cremation. If the bereaved are fortunate, a funeral representative will have been appointed prior to death and they will have priority over decisions. Of course, planning for any outcome, a successor funeral representative may also be named to act in post-death decisions if the initial funeral representative is unable or unwilling to act.
Because the bestowment is not binding, a funeral representative does have the right to forfeit the position if, for example, they are unwilling or unable to assume the financial responsibility for costs incurred while exercising those rights. The law stipulates that a funeral representative’s rights are forfeited if the person fails to act within two days after notification of death.
Perhaps the biggest cudgel the law swings is the bestowment of “fiduciary” on the funeral representative, with obligations to follow the known directions of the decedent. It means that there is no ambiguity when it comes to following directions. The representative must act in the best interest of the deceased, in this case meaning following directions.
If you’re like most of us and have put off the thought of what you want done with your remains, and haven’t designated a funeral representative — just as under the old law, the first person with priority to make your funeral decisions is your surviving spouse, followed by the majority of your surviving adult children. If no surviving spouse or adult children act, then the decision falls to the majority of your grandchildren. After that, then it is the majority of your parents, then grandparents and then your siblings. After that, well … potter’s field might be your final resting place.
The takeaway here is that your final wishes can now be codified into law, as long as you have made your wishes clear in advance plans. Your estate plan is a perfect place in which to designate your funeral preferences.