Are You a Responsible Family Member?
We’ve seen it happen all the time…the person making the initial call to our funeral home turns out not to be the one with the legal responsibilities of making decisions related to the care of a loved one. While they may feel that they should be the person allowed to make these decisions, the law doesn’t recognize them as such – and so their voice can become effectively silenced.
If the deceased has not expressed their wishes through a written document such as a Durable Power of Attorney or a Last Will and Testament, where the deceased has designated an agent to fulfill their wishes; then the chain of command, formally called the “order of precedence”, is as follows:
- Legal Spouse in a Marriage or Legal Partner in a Civil Union
- Surviving Adult Child/Children
- Surviving Parent or Parents
- Surviving Adult Sibling or Siblings
- Other blood related relatives, in order of consanguinity
The person (and sometimes the people) designated as the responsible party, whoever they may be, needs to be present to make decisions, and sign documents. If you are unclear as to who is the responsible person in planning a funeral for your loved one, its best to contact us in advance for guidance, as we may be able to help you avoid pitfalls.
While most families are able to plan a funeral with little or no disagreement, from time to time differences of opinion regarding services (viewing/no viewing, religious services, etc.) and/or disposition (burial, cremation or entombment) create difficulties. While these situations usually result in a temporary stalemate that is resolved after extended discussions between surviving family members, there are times when an amicable agreement cannot be reached and funeral plans have to be put off until the parties agree.
The Importance of Designating a Funeral Agent
If your loved one has yet to specify who they wish to be in control of their funeral service planning, and they are clear-headed enough to do so, now is the perfect time to take care of that task. This is particularly important if they think their relatives will not respect their funeral plans, or if they are on bad terms with them, don’t know where they are, or don’t have any living relatives. Your loved one might consider appointing a specific person to arrange their funeral who is not a family member, but is deeply trusted, to ensure that their final wishes are carried out. This person is called a Funeral Agent, and has the absolute and final ability to “call the shots”.
What is a funeral agent?
A funeral agent is an individual named by the deceased in his or her will as the person in charge of making funeral arrangements. The rights of the funeral agent, when properly appointed, supersede the right of all others, including the spouse and other relatives such as children and parents.
Executors of estates, partners, members of clergy, certain relatives you feel closer to than those legally responsible to make arrangements, roommates, neighbors and others can be named funeral agents. Funeral directors, however, should never be named funeral agents.
After the death and before the will is probated, the executor will inform the funeral agent that they are in charge of the funeral and let them know how much money is available to spend on arrangements.
Who Needs a Funeral Agent?
It is advisable to have a funeral agent if you do not have any surviving relatives or close family, especially if the funeral plans you are contemplating include cremation. In New Jersey, a cremation must be authorized by a family member; an executor who is not related can authorize a burial or entombment, but not a cremation. Once a funeral agent is named, there will be no question who is in charge of making your final arrangements or what legal limitations they will face. If there is conflict with family members of equal legal right, such as children, it is advisable you make one of the children your funeral agent and you make your wishes known to the agent directly. If you feel you cannot trust family to follow your wishes, find a trusted friend or companion to appoint as your funeral agent.
The funeral agent option is the legal way for you appoint a specific person to arrange your funeral. It is your choice who you entrust with this honor.
Appointing a funeral agent is the best way to ensure that you get the funeral you want.
How to Appoint a Funeral Agent
In order to appoint someone as your funeral agent, you will need to visit an attorney. Inform the attorney you want to name a funeral agent in your will according to N.J.S.A. 45:27-22. The attorney will need to either draw up a new will or amend your existing will with a simple codicil to include language similar to this:
Appointment of Funeral and Disposition Representative “I hereby nominate, constitute and appoint [insert name] to serve as my Funeral and Disposition Representative, pursuant to P.L. 2003, c. 261. My Representative shall have the authority and power to control the arrangements for my funeral and the disposition of my remains. My Executor shall notify my Representative of this appointment, and shall advise my Representative of the financial means available to carry out the Funeral and Disposition arrangements. In the event [insert name] should predecease me or for some other reason not qualify to serve as my Funeral and Disposition Representative, then I nominate, constitute and appoint [insert name of alternate] as my Funeral and Disposition Representative.”
* Note: New Jersey’s Civil Union Law took effect on February 19, 2007. The law mandates that civil union couples must receive the same benefits and protections and be subject to the same responsibilities as spouses in a marriage, whether they derive from statute, administrative or court rule, public policy, common law, or any other source of law. Therefore, the New Jersey Civil Union Law extends the right to control disposition to civil union partners in exactly the same way as it extends this right to spouses.