As of June 27, 2016, Michigan law allows you to formally identify a Funeral Representative who has the authority to make your final arrangements regarding your funeral, memorial service, cremation and/or burial. The Funeral Representative also has the right to possess – or make decisions about who may possess – your cremated remains. You can designate your Funeral Representative in your will, in your power of attorney, or in a separate writing that is notarized and/or witnessed by two persons.
The passage of this law allows you to have control over an additional decision within your overall estate plan. Previously, confusion was common and tension could easily arise when there was no clear direction as to who could make decisions relating to funeral arrangements and plans for the disposition of the body. This confusion and tension was especially apparent when there was conflict among those with an interest, such as among siblings where there was no surviving spouse. Now, you can take control of this matter before this issue arises after death by naming your own Funeral Representative.
Much like the laws of intestacy that direct what will happen to your property if you fail to create an estate plan, Michigan has also established a “default” order of who may serve as your Funeral Representative if you fail to designate one. The state’s default plan is as follows:
- The person(s) whom you designate as your Funeral Representative(s);
- Your surviving spouse;
- Your children over age 18;
- Your grandchildren over age 18;
- Your parents;
- Your siblings over age 18;
- Your grandparents
Notably, if you are a service member, this default succession may be superseded by a designation under federal law. Additionally, if you have multiple individuals at any level in the succession, for example, three children, all are eligible and a majority vote will control decisions. If any individual elects not to serve, cannot be found, or fails to perform any duties as Funeral Representative within 48 hours of your death, the person(s) at the next level are eligible to act.
There are also groups of individuals who may not be named as your Funeral Representative, unless the person is your spouse or a relative of close degree. These categories include licensed healthcare professionals, employees or volunteers of a health or veteran’s facility that provided care to you during a final illness, and officers or employees of a funeral service, cemetery, or crematory which will be providing your services.
Once the identity of the Funeral Representative is determined, through either your designation or the default succession, the Funeral Representative must sign an acknowledgment of his or her duties before acting. Once accepted, the duties cannot be assigned to another person. In addition to those duties mentioned above, the Funeral Representative is also obligated to ensure that payment is made regarding the disposition of your body and any funeral. This payment can be made through insurance, your estate, or another individual, but if funds are not available through these sources, your Funeral Representative can be held personally responsible for these costs. Accordingly, it is important to have a conversation with your intended Funeral Representative in advance to ensure that your wishes are carried out. You might also consider pre-planning and pre-payment for your desired funeral and disposition arrangements, which will aid your Funeral Representative in the emotional and overwhelming time of your death.
While it is never pleasant to think of one’s own death, designating a Funeral Representative is one more thing that you can do to diffuse tension and facilitate cooperation amongst your loved ones during such a stressful time. If you have questions about incorporating a Funeral Representative designation into your estate plan, feel free to contact Mammel Law at 248-644-6326.