Michigan law permits you to name a funeral representative to make decisions regarding your final funeral arrangements and disposition of your earthly remains. Public Act 57 of 2016, effective June 27th, 2016, allows you to legally designate a decisionmaker to carry out these wishes and list an order of priority if that designated person is not available. The purpose of the law is to clear up confusion on who calls the shots when there is a disagreement among family members.
A funeral representative or a person with priority is “presumed to have 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 retrieve from the funeral establishment and possess cremated remains of the decedent immediately after cremation.” MCL 700.3206(1).
An individual 18 years of age or older (known as the “declarant”) who is of sound mind may execute a funeral representative designation which names another person to be the funeral representative and execute the right and power to make funeral and burial decisions. MCL 700.3206(2). The funeral representative may exercise his or her rights and powers only after the death of the declarant (e.g. it does NOT confer the authority to make or plan for pre-paid funeral arrangements). MCL 700.3206a(3). The funeral representative designation has the following requirements:
- Must be in writing, dated, and signed voluntarily by the declarant. A funeral representative designation may be included in the declarant’s will, patient advocate designation, or other writing. If a funeral representative designation is contained in an individual’s will, the will is not required to be admitted to probate for the funeral representative designation to be valid. MCL 700.3206(2)(b).
- Must be signed in the presence of and signed by 2 witnesses OR acknowledged by the declarant by a notary public. The witnesses cannot sign the funeral representative designation unless the declarant appears to be of sound mind and under no duress, fraud, or undue influence. MCL 700.3206(2)(b).
The following persons are PROHIBITED from both serving as the funeral representative or acting as a witness for an executed funeral representative designation (MCL 700.3206(2)(c)):
- (i) An officer, partner, member, shareholder, owner, representative, or employee of a funeral establishment that will provide services to the declarant.
- (ii) A health professional, or an employee of or volunteer at a health facility or veterans facility, who provided medical treatment or nursing care to the declarant during the final illness or immediately before the declarant’s death, or a partner, member, shareholder, owner, or representative of the health facility where medical treatment or nursing care was provided.
- (iii) An officer, partner, member, shareholder, owner, representative, or employee of a cemetery at which the declarant’s body will be interred, entombed, or inurned.
- (iv) An officer, partner, member, shareholder, owner, representative, or employee of a crematory that will provide the declarant’s cremation services.
The following is the order of persons with priority to have the right and power to make funeral and burial decisions regarding the decedent:
- (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. MCL 700.3206(3)(a).
- (B) A funeral representative appointed by a lawfully executed funeral representative designation. MCL 700.3206(3)(b).
- (C) The decedent’s surviving spouse. MCL 700.3206(3)(c).
- (D) Individual(s) 18 years of age or older in the following order. MCL 700.3206(3)(d).
- The decedent’s children.
- The decedent’s grandchildren.
- The decedent’s parents.
- The decedent’s grandparents.
- The decedent’s siblings.
- 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 to make funeral and burial decisions.
- 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 to make funeral and burial decisions.
If a person with priority (excluding the funeral representative and surviving spouse) had the right to make funeral or burial decisions, but affirmatively declined to exercise those rights or failed to exercise his or her right within 48 hours after receiving notification of the decedent’s death, then the individual does not have the right to make a decision about the disinterment of the decedent’s body or possession of the decedent’s cremated remains. MCL 700.3206(3)(e). However, if any other individuals with higher priority (including the funeral representative and surviving spouse) cannot be located after a good-faith effort to contact and inform them of the decedent’s death, affirmatively decline or fail to exercise their rights or powers within 48 hours after receiving notification of the decedent’s death, then the rights and powers to make funeral and burial decisions may be exercised by the other individual or individuals in the same order of priority. MCL 700.3206(4). If there are multiple individuals with the same priority, then the rights and powers to make decisions are exercised by a majority of those individuals who can be located after reasonable efforts. MCL 700.3206(5).
If there is no funeral representative, surviving spouse or appropriate family member that can be located after reasonable attempts made in good faith (e.g. contact made at last known address, telephone number or email address) by other family members, the actual personal representative, or nominated personal representative, then the persons in the following order have priority to make funeral or burial decision:
- (A) If the decedent was under a guardianship at the time of death, then the guardian has priority and may make a claim for the reimbursement or burial expenses. MCL 700.3206(7).
- (B) If the decedent died testate, then the personal representative or nominated personal representative, either before or after his or her appointment has priority. MCL 700.3206(6).
- (C) If the decedent died intestate, then a special fiduciary or special personal representative appointed by the court. MCL 700.3206(8).
- (D) If there is no other fiduciaries, then the medical examiner for the county where the decedent was domiciled. MCL 700.3206(9)(a).
- (E) If the decedent was incarcerated in a state correctional facility at the time of his or her death, then the director of the department of corrections (or its designee) has priority. MCL 700.3206(9)(b).
The handling, disposition, or disinterment of a body must be under the supervision of a person licensed to practice mortuary science in this state. The person with priority who exercises the right over the disposition of the decedent’s body must ensure payment for the costs of the disposition through a trust, insurance, a commitment by another person, a prepaid contract under the prepaid funeral and cemetery sales act, or other effective and binding means. MCL 700.3206(13). If the person with priority does not make efforts to secure payment through these specific means, then he or she may be liable for the costs of disposition (although a claim may be made upon the decedent’s estate later).
If there is a disagreement over the disposition of a body among persons with priority (or a disagreement over who actually is a person with priority), then a petition may be filed in the county probate by any person in the order of priority or the funeral establishment with custody of the decedent’s body. MCL 700.3207(1). If the funeral establishment brings the petition before the court, then the funeral establishment’s actual costs and reasonable attorney fees in bringing the proceeding must be included in the reasonable funeral and burial expenses paid by the decedent’s estate (or possible charged against the other parties or intervenors by the probate court). MCL 700.3207(4). However, the funeral establishment is not required by law to file a petition resolving disagreements, is not civilly liable for failing to file said petition, and may rely on a properly presented funeral representative designation over the objections of other family members. MCL 700.3209. While a legal action regarding the disposition of the body is pending, the funeral establishment may embalm with decedent’s body if there is no refrigeration reasonably available. MCL 700.3207(6).
To avoid familial conflict and ensure that your final wishes are carried out, it is a good idea to consider making a funeral representative designation a part of your estate planning. If you have further questions on this topic or any other legal matter, do not hesitate to contact the attorneys at Kershaw, Vititoe & Jedinak PLC.