We are now able to offer our clients in Michigan a new document which the estate planning community has been seeking for years. Thirty-nine other states have already adopted similar laws and now, effective June 27, 2016, we have the “Funeral Representative Designation Act” (the “Act”). This new Act provides for one individual (the “Declarant”) to give another individual (the “Funeral Representative”) the right and power to make decisions about funeral arrangements and the handling, disposition, or disinterment of the Declarant’s body, including, but not limited to, decisions about cremation, and the right to possess cremated remains of the Declarant.
Until this Act, Michigan residents were stuck with what was a “next of kin” order of individuals who can make funeral decisions. The antiquated law seemed to ignore the realities of second marriages, estranged children, childless marriages, same-sex couples, and so forth.
Now, if no Funeral Representative is designated, funeral decisions are made by the next of kin in the following priority: your surviving spouse; your children; your grandchildren; your parents; your grandparents; your siblings; descendants of your parents (i.e. nieces and nephews); and descendants of your grandparents (i.e. aunts and uncles).
Anyone can be designated as Funeral Representative if the individual is at least 18 years of age and is not an employee associated with a funeral, cemetery, crematory or health facility providing services, unless that individual is among a class of certain relatives. The Declarant may also name a successor if the first named Funeral Representative is unable to act.
There is presently some discussion concerning to whom the Funeral Representative owes a fiduciary duty. This may be the most controversial part of the Act. According to the Michigan Association of Funeral Directors and some others, the duty does not run to the Declarant because “funeral rites exist for the benefit of the living”. The potential conflict would seem to be when a Declarant has made certain wishes known to the Funeral Representative and the next of kin objects to those wishes. Is the Funeral Representative bound to follow the Declarant’s wishes or does the Funeral Representative have a duty to the next of kin? The Act is not clear on this point. Disagreements may have to be ironed out by petitioning the probate court.
It should also be noted that the Act provides that the Funeral Representative is required to guaranty payment for the costs associated with the decision concerning the disposition of the Declarant’s remains. For this reason, we suggest that if you decide to execute a Funeral Representative Designation, you provide for payment of the costs and arrangements made by your Funeral Representative in your Will or Trust, by a prepaid funeral contract or another type of pre-need arrangement, or through a life insurance policy.
We also suggest that you formally state your funeral wishes in writing and attach it to the Funeral Representative Designation. We have designed a form you can use for this if you need some guidance. Clear instructions are likely to be followed by the Funeral Representative and accepted by the next of kin. It is our hope, and some feel there is a good chance, that Michigan’s law will someday be amended to expressly allow an individual to state his or her specific wishes that must be followed.
Finally, you should share this document with your designated Funeral Representative and any successor you name. That way, he or she can get involved as soon as possible after your death, especially if the Funeral Representative is not a next of kin relative.
If you have any questions, please call Karen L. Stewart, Attorney and Counselor at (248) 735-0900. For more information, please see my website, www.customestateplans.com.