FTC reviewing the Funeral Practices rule

The Federal Trade Commission issued a request for comments on its Trade Regulation Rule governing funeral directors and funeral homes in mid-February 2020. The Part 453 regulations were first adopted in 1982 and were amended a couple of times since then. No amendment is proposed. The request for comments is part of an ongoing review process. The rule was reviewed in 2008 and a determination was made then that it should be retained.

The request includes this comment:

The Commission reviews its rules and guides periodically to seek information about their costs and benefits, regulatory and economic impact, and general effectiveness in protecting consumers and helping industry to avoid deceptive or unfair practices. These reviews assist the Commission in identifying rules and guides that warrant modification or rescission. 

With this document, the Commission initiates a new review. The Commission solicits comments on, among other things: (1) The economic impact of, and the continuing need for, the Funeral Rule; (2) the Rule's benefits to consumers; (3) and the burden it places on industry members subject to the requirements, including small businesses.

The FTC is accepting written comments until April 14, 2020.

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."

Who has the right to decide the disposition of remains?

You may assume that statements made in a person's will would control whether his body is to be buried or cremated. You may assume that the person that the decedent nominated as personal representative has the right to make that decision. Both assumptions would be wrong.

This decision is controlled under section 3206 of the Estates and Protected Individuals Code. The legislature recognized that providing for a personal representative to make a decision would be too cumbersome in most cases, since the disposition decision has to be made very soon, but the process of naming a personal representative can take at least a couple of weeks, and sometimes many months. So, instead, section 3206 provides for a priority among family members to make this decision. (If the decedent was a member of the armed services, other provisions will now apply, as our last posting described.)

In order of priority, borrowing from section 2103 (the section which identifies which relatives will receive property when a person dies intestate - without leaving a will), section 3206 gives the decision-making authority to family members in the following order:

• the surviving spouse  
• the decedent's children 
• the decedent's grandchildren 
• his parents 
• his siblings 
• his nieces and nephews 
• his nominated personal representative 
• his guardian, if any 
• the county public administrator 

At each level, if the person(s) cannot be located or chooses not to make the decision, the authority passes to the next priority level.

The section provides that, in the event two or more people having the same priority cannot agree, the decision of the majority controls. If a majority cannot be found, as would be the case if the decedent left two children who did not agree, a petition may be filed with the probate court under section 3207 to have the court make the determination, after a hearing. Section 3207 identifies some criteria to guide the court, including the important question of whether the person bringing the petition is "ready, willing, and able" to pay the costs of the intended disposition.

Any person who has created a will or a trust should be aware that neither the funeral home nor the court will consider the decedent's wishes as expressed in the document, if there are relatives with the established priority to make the decision. If a particular means of disposal is important to you, be sure to let your closest family members know your wishes.