Thursday, March 31, 2016

The new "funeral representative" law

The Michigan legislature has passed, and the governor has signed, Public Act 57 (2016), which includes amendments to section 3206 of the Estates and Protected Individuals Code (EPIC) governing the disposition of the remains of deceased persons. 

The previous list of priorities for making determinations was discussed in our April 2012 posting. A brief recap of those provisions:
  • The decedent could not control this issue, by will or otherwise.
  • The personal representative had no say, either, if he was not a family member. 
  • The determination would be made by the surviving spouse or, if none, a majority of the nearest relatives.
  • If they could not agree, the probate court could be asked to resolve the dispute.
The revised section 2306 adds a new "funeral representative" at the top of the list. The previous listed priority remains, but the first in line (absent a DOD designation as noted below) to make the decision about disposition, including cremation, is the decedent's designated "funeral representative."

How is that person named? The section provides
  • the funeral representative must be age 18 or old and of sound mind
  • the designation is to be made in writing, dated, and signed
  • the writing must be signed before two witnesses or a notary
  • the designation may be made as part of the person's will or Patient Advocate Designation, or it may be a self-standing writing
The following should also be noted.

If the designation of the funeral representative is made in the decedent's will, it does not have to be submitted to probate for the designation to be effective.

The previous provisions (discussed here previously) giving the very first priority to the person designated in Form DD-93, promulgated by the U.S. Department of Defense, for a decedent who was "a service member" at the time of his death will continue, with the subsections and their language reorganized to make the order of priority clearer. Deferral to the DOD form was necessary since that is a matter of Federal law.

A new provision is included as subsection 3-e:
"If an individual [designated in Form DD-93] 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 to make a [later] decision about the disinterment of the decedent’s body or possession of the decedent’s cremated remains."